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A DIGEST OF OPINIONS OF THE 
JUDGE ADVOCATE GENERAL 

CERTAIN DECISIONS OF THE COMP- 
TROLLER OF THE TREASURY 

THE COURTS 

AND 

CERTAIN OPINIONS OF THE 
ATTORNEY GENERAL 



FROM JULY 1, 1912 
TO APRIL 1, 1917 




WASHINGTON 

GOVERNMENT PRINTING OFFICE 

1917 

' • ' '/ 



"U'B 5*00 



Wae Department 

Document No. 572, 

Office of The Adjutant Ueneral 



De Of D. 
SEP 17 1917 






DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, CERTAIN 
DECISIONS OF THE COMPTROLLER OF THE TREASURY AND THE 
COURTS, AND CERTAIN OPINIONS OF THE ATTORNEY GENERAL 



JULY 1, 1912, TO APRIL 1, 1917. 



BULLETIN 12. 



Bulletin \ AVAR DEPARTMEXT, 

Xo. 12. J Washington, August S, 1912. 

The follovving' digest of opinions and decisions rendered by the 
Judge Advocate General, the Comptroller of the Treasury, the Atr 
torney General, and the courts is published for the information of 
the service in general. 

It is intended to embrace all important opinions rendered by the 
Judge Advocate General from January 31, 1912, to which date, in- 
clusive, the latest published Digest of said opinions extends, to June 
oO, 1912, inclusive; but it has been deemed proper to publish some 
of earlier date Avhich could not be included in the General Digest or 
the importance of which seemed to justify further publication. 

The other opinions and decisions which have been digested and 
which are deemed of special importance to the service cover pi'ac- 
tically the same period, but for obvious reasons embrace many that 
are of date prior to the publication of the last Digest and could not 
be noted therein. 

It is the purpose to make this and similar bulletins issued at stated 
times the basis of supplements to the published Digest and in this 
manner to keep the same up to date as far as practicable. 
[1931376, A. G. O.] 

By order of the Secretary or War : 

LEOXARD WOOD, 
Major General^ Chief of Staff. 

Official : 

HEXRY P. McCAIX, 

A d }u tan t G eneral. 



0PINI02JS OF THE JUDGE ADVOCATE GENEHAL. 

ABMY: Betiring board; action of President on report of. 

The President may not modify the finding of a retiring board. 
He may approve or disapprove the finding, but, subject to his right 



4 DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENEEAL. 

to return it to the board for recommendation, beyond this he may not 
go. If the President approve the finding, the law indicates what 
shall or may be done. (See sees. 1249-1252, Rev. Stat.) If he dis- 
approve, the proceedings and finding of the board are nullified. 
(C. 29449, Feb. 17, 1912.) 



AETICLES OF WAR: Discharge by department commander under fourth 
Article of War. 

Under the fourth Article of War a department commander may 
order the discharge of an enlisted man whose term of service has 
not yet expired, but paragraph 139, Army Regulations, 1910, serves 
to direct that he shall not exercise this right Avhieh the law^ gives 
him. Held, that the regulation is lawful, as it does not seek to con- 
trovert a statute, but merely to regulate the conditions under which 
the power granted by the statute may be exercised. It follows that 
should a department commander order the discharge of one of his 
men before the expiration of his term of enlistment the discharge 
would be entirely legal, but the officer ordering it would have acted 
in disobedience of a regulation. 

(C. 23259, Apr. 12, 1912. See also G. O. 174, W. D., 1909.) 



CIVIL AUTHOmTIES : Surrendering soldier to; Fifty-ninth Article of 
War. 

The terms of this article, which provides for the delivery to the 
civil authorities of any officer or soldier accused of a crime or offense 
punishable by the laws of the land, have never been regarded as 
modifying or affecting the operation of the rule of comity which 
prevails wherever two independent criminal courts have jurisdiction 
of the same person or case, the rule being that the authority whose 
jurisdiction first attaches, by reason of process retains jurisdiction 
until its claim has been completely satisfied. (C. 23264, May 27, 
1909.) Under the above rule, where a soldier was sentenced to dis- 
honorable discharge with confinement, and while serving confine- 
ment escaped and reenlisted in the military service under an assumed 
name and w^as again arrested and, his identity having been discov- 
ered, was placed in arrest to serve out his sentence, and the civil 
authorities presented a warrant for his arrest for a crime committed 
after his escape. Held., that the soldier should not be surrendered. 

So also where before his enlistment a soldier had committed a 
crime for which he had been sentenced to the penitentiary, and while 
out of the penitentiary on a conditional pardon left the State in 
violation of its terms and enlisted in the military service, and was 
dishonorably discharged therefrom pursuant to the sentence of a 
general court-martial. Held, that under the above rule of comity 
he should not be surrendered to the civil authorities. (C. 28963, 
Nov. 11, 1911.) 

(C. 23264, May 24, 1912.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 5 

CIVILIAN EMPLOYEES: Civil service; removal of. 

So Jong as a civil-ser^■icc employee is fit for service and is perform- 
ing his duty efficiently within the meaning of rules 5 and 12, Civil 
Service Regulations of February, 1912, he can not be removed from 
office on the ground that he is subject to a disability which would 
increase the possibility of an accident for which the United States 
would be liable under the act of Mav 30, 1908 (35 Stat., 556). 

(C. 23069, Mar. 27, 1912.) 



CLAIMS: Assignment of, section 3477, Revised Statutes. 

The Government had a contract with the Helena Waterworks Co. 
whereby the latter agreed to supply the Army post near the city of 
Helena, Mont., with water and to renew the agreement annually 
within a certain stated period. In a suit in the Federal court the 
company's affairs were placed in the hands of a receiver, and that 
official, under the order of the court, sold the property of the company, 
including a claim against the United States for water furnished, to 
the Old Colony Trust Co. lield^ that payment of the accrued claim 
for water furnished by the said company to the United States should 
be made to the assignee, the Old Colony Trust Co., as the transfer of 
the claim was in the nature of an involuntary assignment or transfer 
by operation of law and not in Aaolation of section 3477, Revised Stat- 
utes, forbidding the transfer of claims against the United States. 

(C. 25394, Mar. 30, 1912.) 



CLAIMS: Claim, for cattle killed where troops had removed a fence on 
leased land. 

The United States, having leased land for maneuver purposes, 
later vacated the premises, the landlord accepting the return of the 
same in the condition in which the troops left tliem. and receiving 
compensation for certain assessed damage, including that to fences. 
Two days after the premises had been vacated by the United States 
three head of cattle strayed therefrom onto the railroad and were 
killed. The landlord who owned the cattle advanced a claim against 
the Government for the value of the same, based on the allegation 
that the cattle had been killed because a portion of a fence had been 
removed by the troops. Ileld^ that the claim was inadmissible, as 
the damage accrued after the Government had relinciuished the 
premises, and further because the landlord having accepted settle- 
ment for damage to his fences had by so doing accepted responsibility 
for them in the condition in which they were left. 

(C. 23472, May 1, 1912.) 



CONTRACTOR: Delays by; exclusion from future bidding. 

Where a contractor completed its contract, after unjustifiable delay 
and attempts to evade the contract requirements, on the recommenda- 
tion that the contractor be debarred from further work, under G. O. 
167, War Department, October 10, 1905. Ueld^ that there was not 



6 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

such failure to fulfill the contract as is contemplated in said general 
orders, but that, in letting future contracts on which this contractor 
might submit the lowest bid, it would be proper to consider the facts 
alcove stated in determining whether such bid should be considered 
the lowest and hest bid. 
(C. 29182, Mar. 4, 1912.) 

CONTPvACTS: Advertising'; accepting next higher bid. 

Where two bids Avere received hy the Signal Corps for deep-sea 
cable, but the superiority of the cable offered at the higher bid more* 
than compensated the difference in price, it was held that the higher 
bid might be accepted as being the lowest and best bid for the Gov- 
ernment, having regard to the quality of the cable to be secured. 

(C. 29451, Feb. 17, 1912.) 

CONTRACTS: Advertising; alteration of bids. 

The day before bids for the manufacture of certain overcoats were 
to be opened, telegrapliic request was sent to all who had presented 
bids to make other bids upon a coat with a material alteration from 
the kind required in the original advertisement. Held., that the law 
requiring all purchases of supplies, except in certain specified cases^ 
to be made only after due advertisement, requires a notice that wnll 
reach the general public or that portion of it engaged in the manufac- 
ture or sale of the particular articles wanted, and for a sufficient 
length of time to allow for the making of bids, and said law was not 
complied with under the conditions stated. It is recommended that 
all bids received in response to such telegraphic notice be rejected. 

(C. 29470, Feb. 28, 1912.) 



CONTRACTS: Advertising; increasing quantities. 

Where an advertisement was made for building material for 5 sets 
of field officers' quarters and 19 double sets of company officers' quar- 
ters, subject to an increase or decrease of 20 per cent, and after bids 
were received it was proposed to make contracts for material for 11 
and 83 sets, respectively. Held^ that such a contract would not be in 
accordance with the advertisement and would not be a compliance 
with the law requiring advertising for such supplies. Held^ how- 
ever, that if it be determined that there is such an exigency as v/ill 
not permit of the delay incident to readvertising there would be no 
leaal objection to the proposed contract. 

(C. 29600, Apr. 11, 1912.) 



CONTRACTS: Construction of; " corner pins " on cross arms of electric- 
lighting system. 

The contract for an electric-lighting system provided that the pins 
on the cross arms of the poles, " except corner pins, shall be of the 
best locust." On claim by the contractor for extra com|)ensation for 
being required to furnish iron pins at the ends of the lines and also 
where angles occurred. Held, that the term '* coruer i)ins "" was prop- 
erly construed by the supervising inspector as including a considerable 



DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENEBAL. 7 

diange in direction (see Christian v. Gernt (Tenn.), 04 S. W., 399, 
401), but that the term would not include pins on the cross arms at 
the ends of the lines. 

(C. 29482, Mar. 4, 1912.) 



CONTRACTS: Delays in performance; adjustment of unliquidated damag'es. 

A firm had a contract for the construction of the principal build- 
ingfs at the Fort Sill, Okla., new artillery post, and others had con- 
tracts for doing- various work in said buildings and about the posi, 
dependent upon the construction or progTess of construction of said 
buildings. The principal contractors delayed the execution of their 
work, thereby causing delay and loss to the other contractors. Held^ 
that such losses, in so far as the United States might be answerable 
for them, were unliquidated damages for breach of contract which 
the executive officers have no jurisdiction to settle or allow (17 Comp. 
Dec, 810; Cramp d- So^is v. 'U. S., 216 U. S., 494) ; but the probable 
amount of such losses for which the Government might be liable in 
an action on the contracts should be retained from the contract price 
in settling with the contractors whose delays occasioned the losses, 
as a protection to the United States. 

(C. 27675, Mar. 7, 1912.) 



CONTRACTS: Indemnity against infringement of patent. 

Where the United States having a license to manufacture or have 
manufactured, for the use of the United States, Army field bake 
ovens covered by a particular patent, entered into a contract with a 
private firm, which made no claim to any rights in the premises, for 
the manufacture of the ovens according to the patent, and notice was 
served on the manufacturer that the oven covered by said contract 
was an infringement of another patent for an improved camp oven. 
Held, that in the light of these facts, although there was no express 
provision in the contract that the United States would indemnify 
the contractor against claims for infringement of other patents, there 
would be an implied obligation to do so, under tlie rule that where 
an act, not apparently illegal in itself, is done under the express 
directions of the other party to a contract, and occasions injury to 
the rights of third persons, the party doing the act is entitled to 
indemnity against the consequences of the act, provided it is done 
honestly and bona fide in compliance with directions. (22 Cyc, 95; 
Kinf/ V. United States, 1 Ct. Cls., 38.) Held further, that there was 
clearly no obligation on the part of the contractors to proceed with 
the contract if by so doing they would render themselves liable for 
infringement, without provision for reimbursement by the United 
States, and that the urgent need of the Government for the ovens 
would make it to the interest of the United States to enter into a 
supplemental contract with them Avhereby the Government would 
expressly undertake to indemnify them against any claims for in- 
fringement of the patent rights of other patentees. 

(C. 25188, Apr. 8, 1912.) 



8 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CONTRACTS: Sufficiency of notice to make delivery of articles purchased. 

A contract provided for the delivery of a certain amount of grain 
to the United States in quantities ordered by the depot quarter- 
master, that portion delivered prior to December 31 to be paid for at 
a certain rate, while the portion delivered afterwards was to be paid 
for at a higher rate. Notice was given in the latter part of December 
for delivery during that month of the entire balance of grain due 
under the contract. Delivery was not made until after December, and 
compensation was claimed at the higher rate upon the ground that 
there was not sufficient time after notice for making delivery in 
December, and that even if delivery had been tendered in that month 
the Government was not in position to receive it. TJeld^ that it was 
the duty of the Government to have given notice for the delivery of 
the grain in sufficient time to have permitted its delivery within the 
month of December, and if it did not, and delivery was accepted, 
after that month, payment for the grain delivered should be made at 
the prices provided for in the contract for deliveries at the time 
when they were actually made; and further, that the Government 
should also have been in a position to have received the grain in 
December, if tendered, in order to have availed itself of the prices 
fixed for December deliveries. 

(C. 29573, Apr. 3, 1912.) 



COURTS-MARTIAL: Discipline; reviewing authority. 

The action of a reviewing authority in approving a sentence of a 
general court-martial and simultaneously remitting a portion thereof 
is legally ecjuivalent to approving only the sentence as reduced. 

(C. 23038, May 2, 1912.) 



DESERTER: Reward for apprehension; additional expenses. 

A sheriff of one of the Hawaiian Islands transported a deserter 
from the United States Army to Honolulu where he was delivered 
to the military authorities, and in so doing expended a sum very 
nearly equal to the $50 reward authorized for the apprehension and 
delivery of deserters. On submission of the question as to whether 
there were any means by which the expenses might be paid and the 
sheriff receive the full reward. Ilelcl^ that the $50 reward authorized 
by Army Eegulations, made in pursuance of law, for the return of 
deserters from the United States Army, must include all expenses 
of apprehending and bringing the deserter to the nearest military 
post or to a place agreed upon ; but that there is no restriction placed 
upon the cost of the journey of an armed party sent to receive the 
person arrested and held as a deserter. 

(C. 17327-B, Feb. 15, 1912.) 



DESERTERS: Reward for apprehension; claim of policeman for arresting 
deserter after he had surrendered to military authority. 

Whei'e a deserter had surrendered to a recruiting sergeant, had 
been placed in arrest, paroled to a given date, and while at large 
under such parole was arrested as a deserter by a police officer who 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 9 

claimed to believe that the deserter intended to escape. Ileld^ that 
the police officer was not entitled to the reward for the apprehension 
and delivery of a deserter. 
(C. 17327, May 29, 1912.) 



DESERTERS: Reward for apprehension; confined in prison. 

A bertillion clerk at a State penitentiary informed the military 
authorities that a prisoner at that institution was probably a de- 
serter, which information led to his apprehension and arrest by said 
authorities immediately upon the termination of his term of imprison- 
ment. The other penitentiary officers did nothing more than turn the 
prisoner over to the military authorities at the end of his term, and 
disclaimed any interest in the reward. Held., that the person furnish- 
ing the information was entitled to the entire reward offered for the 
return of the deserter and that it was not necessary that he should 
personally have made the arrest and delivery to the military au- 
thorities, 

(C. 17327-B, Feb. 9, 1912.) 



DESERTERS: Reward for apprehension; delivered as absent without 
leave, but tried for desertion. 

Where a police officer delivered to the military authorities a sol- 
dier as having been absent without leave, but who was later deemed 
by those authorities to be a deserter and was tried as such. Held., 
that the police officer is entitled to a reward as having apprehended 
and delivered a deserter, and this though the soldier was acquitted 
of desertion and convicted of absence without leave only. 

(C. 17327-B, Apr. 17, 1912.) 



DISCIPLINE : Punishment in reducing from first-class private. 

The maximum punishment order provided that for certain offenses 
first-class privates might be reduced to second-class privates. Pur- 
suant to this order a first-class private of the Signal Corps was sen- 
tenced to " be reduced from firt-class private to second-class private." 
At the time the only privates in the Signal Corps were " first-class 
privates " and '"■ privates."' There were no "' second-class privates." 
Held., that as the only grade below that of first-class private was 
private, the effect of the sentence was to reduce the soldier to the 
grade of j^rivate. 

(C. 3694, May 20, 1912.) 



EIGHT-HOUR LAW: Government employees; extraordinary emergency. 

Under the act of August 1, 1892 (27 Stat.. 310). it does not con- 
stitute a sufficient statement of an extraordinary emergency to re- 
port merely that a laborer or mechanic was employed overtime on 
account of " working aloft as rigger,'' " extra attention required to 
floating plant," " repairing derrick," *' repairing machinery of work- 



10 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

ing plant,-' or "making necessary repairs to machinery/" An emer- 
gency is an eyent or occasional combination of circumstances which 
calls for immediate action or remedy, and the report of an extraor- 
dinary emergency, required by paragraph 742, Army Regulations, 
1910, should show that conditions demanded iuunediate action or 
remedy. 

(C. 20169-C., Feb. 2, 1912.) 



EMPLOYEES: Presents to oflacial superiors. 

Section 1TS4, Reyised Statutes, pro\ides that no officer, clerk, or 
employee in the Goyernment seryice shall solicit contributions from 
officers, clerks, or employees in the same service for a gift or a 
present to any one in a superior official position, and prohibits any 
such official or clerical superior from accepting any such present. 
n<Jd^ that the forelady in the tent department of the Philadephia, 
Pa., depot of the Quartermaster's Department, who only has the duty 
of distributing work among employees and superintending its execu- 
tion, is not an official or clerical superior nor a person occupying a 
superior official position within the meaning of said statute, and does 
not violate its provisions by accepting presents from employees under 
her direction which ha^■e been paid for with money raised by volun- 
tary subscription among such employees, nor does the employee who 
solicits such subscription thereby violate said statute. 

(C. 2973G, May 29, 1912, p. IS!) 



ENLISTED MEN: Engaging' in commercial business; hiring out automo- 
biles. 

Complaint having l)een made that certain enlisted men owning 
automobiles at a post were letting them out for hire and were com- 
peting with a regular stage line between the post and a neighboring 
village. Ileld^ tliat while enlisted men do not by enlistment lose 
their rights as citizens to engage in commercial business, and while 
there is^io objection to their owning automobiles and allowing others 
to use them for hire, yet. for military reasons, they should not be 
permitted to maintain anything in the nature of a regidar system of 
transportation for gain. 

(C. 29467, Feb. 29, 1912.) 



GB.ATUITY: Deceased officers and soldiers; carelessness or accident not 
misconduct. 

In ci\'il actions to recover damages from a defend:int on account 
of injuries caused by the defendant's negligence, the rule is that if 
the plaintiff has failed to exercise that reasonable degree of care and 
diligence which a person of ordinary prudence and capacity might 
be expected to exercise under similar circumstances, he is himself 
guilty of contributory negligence and can not recover from the de- 
fendant. But in cases arising under the act of Mav 11, 1908 (8.5 
Stat.. 108), as amende*! by the act of March 3, 1909(35 Stat., 735), 
w hieh pro\ides for the payment to certain beneficiaries of a gratuity 



DIGEST OF OPINIOM^S OF THE JUDGE ADVOCATE GENERAL. H 

equal to six months' pay of an officer or enlisted man on notice of his 
death from wounds or disease " not the result of his own miscon- 
duct," the above rule preventing recovery in case of contributory 
negligence can not be applied as a test of whether six months' pay 
shall be paid to the beneficiary of the deceased officer or soldier. 
This is for the reason that '' misconduct," which is the test applied 
by the above acts, implies something in the nature of intentional 
wrongdoing, the transgression of some established rule, military, 
civil, or moral, or a reckless disregard of one's safety, etc. Careless- 
ness or an accident on the part of the deceased officer or soldier not 
amounting to " misconduct " will not defeat payment to the bene- 
ficiary. 

(C! 2366G, June 25, 1912.) 



GSATUITY: Payable on death of soldier; soldier's misconduct. 

Where a soldier absent from his station, whether with or witliout 
leave, trespasses upon private property, he assumes the risk of injury 
resulting from such a trespass, and such an injury would be not in 
line of duty and would be the result of his own misconduct. 
(C. 23666, Aug. 4, 1909; Oct. 4, 1910.) The determination whether 
a soldier's death while trespassing on tracks of a railroad company 
is in line of duty or results from his OAvn misconduct in a given 
case, does not in any way depend on the liability of the company 
to the soldier for damages. (C. 23666, Sept, 19, 1910.) Nor does 
it depend on whether the soldier was violating a military rule or 
regulation, but rather does it depend on the quality or condition of 
the act itself of the soldier. 

(C. 23666, Feb. 29, 1912, citing 2 Tension Decisions, 232.) 



MEDICAL ATTENDANCE: Seamen in the Army Transport Service; ap- 
propriations. 

A seaman in the Army Transport Service was sent to an Army 
hospital ashore for temporary treatment. Held, that seamen in the 
United States Army Transport Service are entitled under their con- 
tract of employment to all the benefits which usually pertain to the 
service of a seaman, or which may be provided for such service by 
regulation, which include needful medicines and medical attend- 
ance; and when one receives treatment ashore by authority of 
the officers of the vessel on which he is engaged, the expenses there- 
for are a charge against the United States. Held further, that the 
appropriation for medical attendance and supplies under the control 
of the Medical Department is chargeable with the expenses of such 
treatment, said appropriation being more specific as to this purpose 
than that for the transportation of the Army to which the service is 
incidental. 

(C. 24389, May 28, 1912.) 



MILITARY ACADEMY: ileappointment of cadet under seciton 1325, Re- 
vised Statutes. 

^^"liere a cadet had been found deficient and recommended for dis- 
charge by the Academic Board and had as a result been discharged. 



12 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Tleld^ that under section 1325, Revised Statutes, the former cadet, 
although he had passed the age fixed for original admission to the 
Academy, might be reappointed, as section 1325, Eevised Statutes^ 
shows no age requirement and clearly has for its intent not to permit 
one who has been a cadet to commence or recommence his career 
at the Military Academy, but to continue it. 
(C. 16602, Mar. 22, 1912.) 



MILITARY RESERVATIONS: Power of the President over public lands. 

Any military reservation, whether so designated by presidential 
or congressional authority, which, in the opinion of the President, 
has become useless for military purposes, may be turned over to 
the control of the Secretary of the Interior for disposition under the 
act of July 5, 1884 (23 Stat., 103), and may, either before or after the 
turning over of the same to the control of the Secretary of the 
Interior and before disposition thereof, be set aside by him for some 
other public purpose in the same manner as other public lands. 

(C. 29379, Apr. G, 1912.) 



MILITIA: Accounting" for tent equipage used by tlie governor of the 
State for the relief of flood sufferers. 

The governor of the State of Arkansas loaned to the sufferers from 
the Mississippi floods certain tent equipage which had been issued 
to the State by the United States for the use of the organized militia, 
and thereafter requested an additional issue of such equipment for 
the use of said militia, in view of the fact that it was uncertain when 
the State would receive back the tentage so loaned, and also whether 
when received back it w^ould be in condition for use. Held., that 
supplies and equipage issued to the several States for the use of 
the militia thereof and paid for from the appropriations under 
section 1661, Revised Statutes, remain the property of the United 
States until consumed, and that the Government might take over 
said tentage at its actual value when turned over for the use of the 
flood sufferers and continue to use the same for the relief of said 
sufferers, crediting the State's allotment from said appropriation and 
charging the appropriation available for the purchase of tentage for 
such purpose. 

(C. 29692, May 13, 1912.) 



MILITIA: Machine-gun organiations. 

Section 3 of the militia law of January 21, 1903 (32 Stat., 775), 
provided that the organization, armanent, and discipline of the Or- 
ganized Militia shall be the same as that prescribed for the Regular 
Army. This section was amended by section 2 of the act of May 27, 
1908" (35 Stat., 399), by adding the words "subject in time of peace 
to such general exceptions as may be authorized by the Secretary of 
War." Held., That this exceptionis broad enough to include machine- 
gun units or organizations containing additional commissioned offi- 
cers and enlisted men to those prescribed for batteries in the Regular 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 13 

Army, and the officers and men are entitled to be paid as a part of 
the Organized Militia while rendering service otherwise entitling 
them to such pay, provided that said organizations are uniform so as 
to make the exception general. 
(C. 14148-1, June 4, 1912.) 



MILITIA: Officer of the Army detailed as instructor and inspector. 

An officer of the Army was detailed as instructor and inspector for 
the Organized Militia of the State of California, under the provisions 
of the act of March 3, 1911 (36 Stat., 1045). On reporting to the 
governor of the State he was directed by him to proceed from Sacra- 
mento to San Francisco, in said State, for the performance of duties 
in connection with the Organized Militia. Held, that the expense of 
his transportation from Sacramento to San Francisco, being incident 
to his service to the militia and not to his service to the United 
States, is not a charge against the United States, and the officer must 
look to the State for reimbursement. 

(C. 14148, June 15, 1912; see also Decision of the Assistant Comp- 
troller of the Treasury of Mar. 18, 1912.) 



MILITIA: Officers of the Regular Army holding commission in. 

While an officer in the Kegular Army is not precluded by section 
1222, Revised Statutes, from holding office in the Organized Militia 
of a State, yet where, by the laws of a State, he can not be so com- 
missioned as to permit his release at the wall of the Secretary of War 
from his obligations as a militia officer, advised, that the officer be not 
granted permission to accept such militia appointment. 

(C. 14148-1, June 15 and 17, 1912.) 



MILITIA: Officer on active list in the Regular Army holding office in; 
compatibility; holding two offices. 

Held, that an office in the Organized Militia of a State is a military 
and not a civil office and that an officer of the Regular Army on the 
active list is not precluded from holding a commission in the Organ- 
ized Militia by section 1222, Revised Statutes, which prohibits such 
officer from holding or exercising the functions of any civil office. 
Held further, that the office held by a commissioned officer in the 
regular service and that held by a commissioned officer in the State 
militia are not legally incompatible and may be held by the same per- 
son, but that State laws might impose conditions rendering it im- 
practicable or impossible for the officer to hold both positions at the 
same time. Held further, that under the act of July 31, 1894 (28 
Stat., 205), which provides that — 

" No person who holds an office the salary or annual compensation 
attached to which amounts to the sum of two thousand five hundred 
dollars shall be appointed to or hold any other office to which com- 
pensation is attached unless specially heretofore or hereafter specially 
authorized thereto by law ; but this shall not apply to retired officers 



14 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL, 

of the Army and Xavv Avhenever they may be elected to public office 
or whenever the President shall appoint them to office by and with the 
advice and consent of the Senate." 

a Re2:idar Army officer may accept a commission in the State militia, 
as " any other office '" refers to a Federal office only. 
(C. 29273, Nov. 28, 1911.) 



MILITIA: TTse of outside of the United States. 

Under existing law the President is not authorized to call out the 
Organized Militia of the States and send it into a foreign country 
with the Regular Army as a part of an army of occupation, espe- 
cially where the United States should intervene in the affairs of 
another nation under conditions not involving actual war. 

(C. 14118-1, Dec. 20, 1911.) 



NAVIGABLE WATERS: Construction of term "Appurtenances." 

Where, by act of Congi-ess approved June 2.5, 1910 (36 Stat., 640), 
the Secretary of War was authorized to enter into contract, subject to 
'• ratification and appropriation by Congress," for the purchase of a 
canal ''together with all property, rights of property, and all fran- 
chises appertaining thereto," and the canal company, while agreeing 
to include in the agreement lands of ample width for the canal 
right of way, and all property needed for the purpose, withheld lands 
owned by it alongside the same as not properly pertaining to the 
canal. Held^ that as it was probably not the intent of Congress to 
require a conveyance of lands not needed or used in connection with 
the canal, and as the word "appurtenances" is susceptible of a 
broad or a restricted meaning according to the context of the sub- 
ject matter, the agreement as executed by the company should be 
approved, subject to ratification by Congress. 

(C. 29445, Feb. 17, 1912.) 



PAY OF OFFICERS: Officers serving abroad by special authorization of 
Congress, 

An officer of the Army was authorized by a special resolution of 
Congress to accept employment under the Chilean Government. 
Ileld^ that he is in the position of an officer aw^aiting orders at a place 
of his own selection, and is entitled during the period of such service 
to the ordinary pay of his grade, not including additional pay for 
foreign service, but is not entitled to any allowances. 

(C. 29481, June 15, 1912.) 



POST EXCHANGE: Responsibility for money collected at pay table and 
due to an exchange. 

Where a company of infantry had been temporarily stationed near 
a post which maintained an exchange and the men of the company 
had been allowed credit thereat, but had left the neighborhood before 
pay day and subsequently paid the amount of their exchange in- 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXERAL. 15 

debtedness to their company commander. IleJd^ tliat the post ex- 
chanoe must loolv to the compan}-^ commander for the money due it, 
and that the fact that he did not pay it over coukl not serve to 
render the enlisted men liable for a second payment. The confidence 
of enlisted men in their superior officers shoidd not be shaken by 
e^■en the suggestion that where they haA'e in good faith reposed con- 
fidence in such superior officer they sliould be told that they did so 
at their peril. 

(C. 29656, Apr. 30, 1912.) 



PRIVATE MILITARY BODY : Assuming- the name of " XT. S. Volunteers." 

AVhere a private signal corps, to be maintained indej^endently of 
State or national aid, asked whether there was a ay reason why it 
should not assume the title of " U. S. Volimteers." Held, that there 
was no Federal law which would prevent the use of that or any 
other name by such an organization ; but advised that the good taste 
and good faith involved in the assumption of the name of an organi- 
zation Avhich clearly is not national in its character nor in any sense 
connected with the United States would seem questionable. 

(C. -29058, May 1, 1912.) 



PUBLIC PROPERTY: Donation of personal property to the United States. 

T'pon question being raised as to the authority of the War Depart- 
ment to permit abutting landowners to string additional wires on 
the Government fence around the military reservation of Leon 
Springs, Tex., to make the fence more secure for their stock, under 
an agreement that the wires, when so placed, should become the 
property of the United States. Held., that in the al>sence of a statute 
forbidding the acceptance of donations of personal property, such as 
a.pplies to the acceptance of voluntary services or of donations of 
land, there is no legal objection to the permission being granted, 
under the proposed agreement, it appearing that such permission 
v\ould be in the interests both of the Government and of the abutting 
landowners. - 

(C. 29257, Mar. 9, 1912.) 



PUBLIC PROPERTY: Land boundary; commission; res judicata. 

Where claim was made that a military reservation, as described in 
the reservation order, included land of the claimant estate, and it 
appeared that the matter of the boundary had been determined by 
a boundary commission against the contention of the claimant, the 
decision being affirmed on appeal by the supreme court of the Terri- 
tory. Held, that the determination so made should be regarded as 
final, and that possession of the land in dispute should be retained, 
leaving the claimant to his remedy at law to recover possession of 
the land. Held fui-thei\ that even if the question were a doubtful 
one, possession should be retained until the matter should be judi- 
cial! v determined adversely to the United States. 

(G. 19852, Mar. 19, 1912.) 



16 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

PUBLIC PROPERTY: Real estate; title to reservations conveyed to the 
United States, without cost, for military posts. 

Certain reservations were conveyed to the United States mider 
acts of Congress providing that npon "' transfer and conveyance to 
the United States of a good and sufficient title " to the premises, 
"" without cotit to the United States," military posts should be 
" established and located on said " lands. The deeds recited nominal 
considerations and purported to convey a fee simple title free and 
clear of all incumbrances, and the title was approved by the Attor- 
ney General. After the establishment and maintenance of the posts, 
for periods varying from 15 to 20 years, it was proposed to abandon 
them, and the question was raised as to whether the title of the 
United States to the lands so acquired was such as to permit of the 
sale of the same. Held., that in making the conveyances the grantors 
may be assumed to have understood that nothing less than a fee 
simple title, free and clear of all incumbrances, would be accepted 
by the Government ; and that, such being the case, no court would 
reform the deeds by engrafting thereon, contrary to this under- 
standing, limitations of the title to the purposes for which the 
property was conveyed. 

field further., that even if the facts stated be regarded as amount- 
ing to implied conditions, such conditions were fully satisfied, on 
the part of the United States, when the posts were established at the 
places specified, with no intention of the establishment being tem- 
porary. See Mead v. Ballard (7 Wall., 290) ; Harris v. Shaw (13 
111., 463) ; Sumner v. Darnell (13 L. K. A., 173) ; Neioton v. Commis- 
sioners (100 U. S., 548) ; that there was nothing in the acts under 
which the posts were established to show an intention to bind the 
Government permanently to maintain military posts at these loca- 
tions: and that as to such reservations, the title in fee is in the 
United States without any limitation which would prevent the sale 
or other disposition of the property by the United States when no 
longer required for military purposes. 

(C. 29379, Mar. 6, 1912. ^ 



PUBLIC PROPERTY: Title to real property; delivery of deed. 

Where a deed was executed and delivered to the United States, 
but not recorded, for the donation of a tract of 640 acres as a site 
for a military post at Santa Fe, N. Mex.. and the bill for authoriz- 
ing the acceptance of a site at that place was not passed by Congress, 
on the question being raised as to the course to pursue to restore the 
land to the grantors. Held., that in view of the provisions of section 
3736, Revised Statutes, the deed was inoperative to pass any title to 
the Government, and that as it was not placed on record it would be 
sufficient to return it to the grantors. 

(C. 1582, Feb. 17, 1912.) 

SALE OF PUBLIC PERSONAL PROPERTY: Sale of articles of medical 
equipment to Red Cross. 

The American National Red Cross having requested the privilege 
of purchasing certain articles of medical equi{)ment, the property 
of the United States, from the Medical Department of the Army. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 17 

Ileld^ that nnder Article IV, section 3, paragraph 2, of the ConRtitii- 
tion, the Congress alone has the right to dispose of the public prop- 
erty, Avhether real or personal, and that therefore in the absence of 
authority from Congress the request of the American National Red 
Cross could not be granted. (See TJ. S. v. NicoU, Fed. Cas. No. 
15879; and 16 Op. Atty. Gen., p. 477.) 
(C. 16153, May 28, 1912.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

APPPvOPRIATIONS: Public buildings; cost of plumbing therein. 

Sundry civil appropriation act of March 1, 1909 (35 Stat., 1001), 
for the fiscal year 1910 provides : 

"Cavalry post, Hawaii Territory: for the construction of the 
officers' quarters, barracks, storehouses, etc., necessary for the accom- 
modation of headquarters and two squadrons of cavalry, $200,000." 

The sundry civil appropriation act for the fiscal year 1910 author- 
ized contracts to be entered into for a greater amount than that 
appropriated for, but made no other changes in the conditions or 
terms of the appropriation. 

The Army appropriation act of March 3, 1911 (36 Stat., 1051), 
for the fiscal year 1912, under the heading " AVater and Sewers at 
Military Posts," provides: 

'"■ For procuring and introducing water to buildings and premises 
at such military posts and stations as from their situation require 
it to be brought from a distance ; for the purchase and repair of fire 
apparatus; for the disposal of sewage; for repairs to "\^ater and 
sewer systems and for hire of employees, $2,250,903.27." 

Upon a request by the Secretary of War for a decision as to 
whether or not the appropriation for the construction of buildings 
at the cavalry post, Hawaii Territory, is available for the installa- 
tion of plumbing fixtures therein to the exclusion of the use for the 
same purpose of the current appropriation for water and sewers at 
military posts. Held, that the cost of plumbing within said build- 
ings should be paid from the appropriations made for the construc- 
tion of the same and not from the appropriation for '" water and 
sewers at military posts." 

(18 Comp. Dec, 612, Feb. 12, 1912.) 



ENLISTED MEN: Continuous service; purchase of discharge. 

A private served three consecutive enlistments of three years each 
in the Army, and enlisted for the fourth, but purchased his discharge 
after serving less than half his term, and enlisted in the Marine 
Corps. Held, tliat the time served in the uncompleted enlistment 
period in the Army should not be computed in making up the fourth 
enlistment period, on which he entered as an enlisted man of the 
Marine Corps. 

(18 Comp. Dec, 714, Mar. 20, 1912.) 

93668°— 17 2 



18 DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENERAL. 

ENLISTED MEN: Six montlis' gratuity; death of beneficiai-y. 

When a private in the Marine Corps designates his father as his 
beneficiary to receive the six months' pay under the provisions of 
tlie act of May 13, 1908 (35 Stat., 128), and makes no designation 
of an alternative beneficiary,' and after the private's death his father 
dies before receiving the six months' pay gratuity, such pay can not 
be paid to the legal representatives of the beneficiary. 

(18 Comp. Dec, 600, Feb. 28. 1912.) 



ENLISTMENT IN MARINE CORPS: When it becomes effective. 

A man who made application for enlistment in the Marine Corps 
on December 20, 1909, and successfully passed the physical examina- 
tion the next clay, but who was not accepted in the service and 
subjected to military authority and control until January 15, 1910, 
Avhen he signed the contract of enlistment and was sworn in, did 
not enlist until the later date and is not entitled to pay and allow- 
ances of an enlisted man prior to that time. 

(18 Comp. Dec, 604, Feb. 9, 1912.) 



EXTRA-DUTY PAY: Service at the United States Military Academy. 

Section 1287, Revised Statutes, and the act of March 3, 1885 (23 
Stat., 359), provide for the payment of extra-duty pay to soldiers 
performing extra-duty service, and the appropriation for incidental 
expenses, Quartermaster's Department, provides for the payment of 
the same; but the act of March 2, 1907 (34 Stat., 1167), 'provides 
that: "Hereafter no part of the moneys appropriated for use of the 
Quartermaster's Department shall be used in payment of extra-duty 
pav for the Armj'^ service men in the Quartermaster's Department at 
West Point." 

The Military Academy act of March 3, 1911 (36 Stat., 1025-27), 
contains appi'opriations for maintaining the children's school and for 
carrying on the development of the general plan for improvements to 
roads and grounds on the military reservation at West Point. Hehl^ 
that enlisted men not belonging to the Arm^'^ service detachment at 
West Point who are detailed and employed on extra duty under com- 
petent authority in connection with the maintenance of the children's 
school or the improvements to roads and grounds on the military 
reservation at West Point, and otherwise coming within the laws and 
i-egulations relative to extra duty, are entitled, for such service, to 
the extra-duty pay provided by law, and the same should be paid 
from said appropriations for maintaining the children's school and 
for the improAcments to roads and giounds. 

(Decision of Asst. Comptroller L. P. Mitchell, June 5, 1912.) 



LAND-GRANT RAILROADS: Michigan Central Railroad; computation of 

earnings. 

The Aficliigan Ceutral Paili'oad is a land-gratit raili'oad between 
Lansing. Mich., and Mackinaw City, Mich., and the earnings on (lov- 
ernnient business o\er said distance or any pait thereof are subject to 
the hmd-grant deduction recjuired by law. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 19 

The earnings of the land-grant portion of a raih'oad used for Gov- 
ernment business are to be determined on the basis of the original 
hmd-grant mileage in connection with the nonaided mileage used for 
said service. 

(18 Comp. Dec, 674, Mar. 6, 191^2.) 



OFFICERS OF THE ABM Y : Selection of home on retirement. 

There is no law or regulation which limits the selection of the home 
by any Army officer on retirement from active service to a place 
within the continental limits of the United States, and where an offi- 
cer serving in the Philippine Islands is retired and selects his home in 
Germany, such officer is entitled to the mileage and actual expenses 
which the law gives in traveling to his home when he makes the jour- 
ney under proper orders within a reasonable time after the date of 
retirement. 

(18 Comp. Dec, 631, Feb. 26, 191-2.) 



PAY AND ALLOWANCES: Fuel allowances; use of by family of oflScer. 

During the entire period from September 1, 1910, to April 30, 1911, 
a lieutenant colonel of the Army was on duty at his permanent station 
in Alaska and i-egularly occupied two rooms assigned to him as quar- 
ters, which were heated by fuel issued by a quartermaster. At the 
officer's request and upon his certificate that he would use 2,000 
pounds of bituminous coal and not use 10,870 pounds of bituminous 
coal per month during said period, there was issued to his family at 
Shrewsbury, N. J., 61,000 pounds of anthracite coal, for which the 
quartermaster paid the sum of $187.20. The auditor disallowed this 
item in the accounts of the acting quartermaster, and the latter 
appealed to the comptroller from the auditor's decision. Held., that 
when the quarters actually occupied by an Army officer are heated at 
the expense of the United States he is not entitled to have any addi- 
tional fuel issued to himself or to his family at the expense of the 
United States, notwithstanding the fact that he may not have occu- 
pied the full number of rooms to which his rank entitled him, or that 
the (Quantity of fuel used to heat the rooms which he occupied as 
quarters may have been less than the quantity which the regulations 
prescribe as the maximum quantity for the number of rooms which he 
occupied. And held further., that when an officer on duty in Alaska 
occupies public quarters heated at his own expense, the quantity of 
fuel which, under the regulations, may be issued at the expense of the 
United States to his family can not exceed the quantity prescribed in 
tlie regulations for the number of rooms actually occupied as quarters 
by said officer. 

(18 Comp. Dec, 592, Feb. 8, 1912.) 

A rehearing was requested upon a certificate showing that the offi- 
cer occupied his full allowance of six rooms, but the rehearing was 
denied upon the ground that all the rooms occupied had been heated 
at (tovernment expense. 



20 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

PAY OF ENLISTED MEN: Deductions of indebtedness due the United 
States from travel pay on discharge. 

An enlisted man was brought back from absence without leaA'e at 
an expense for himself and his guard of $30.15, which, with other 
amomits, made his indebtedness to the United States exceed the bal- 
ance of pay due on his final discharge. Ileld^ that an enlisted man's 
indebtedness t© the United States on account of transportation fur- 
nished him on returning him to his station from absence without 
leave is not a proper charge against the soldier's ti-avel pay due him 
on final discharge from the service. 

(18 Comp. Dec, C21, Feb. 23, 1912.) 



EEENLISTMENT PAY: Computation of; extra-duty pay. 

A soldier enlisted and was discharged from the service after serv- 
ing the full term of his enlistment. For some time prior to his dis- 
charge he was employed on extra duty as a mechanic at the rate of 50 
cents a day and was so emploj^ed until the day before his discharge, 
on which day, being Sunday, he rendered no extra -duty service and 
leceived no extra pay therefor. Held., following decision in 17 
Comp. Dec, 828, that said extra-duty pay received by the soldier 
should not be included in computing the three months' pay for re- 
enlistment within that period. 

(Asst. Comptroller L. P. Mitchell, Jan. 2, 1912.) 



TRANSPORTATION OF BAGGAGE ALLOWANCE: Change of station; 
horses not regarded as baggage. 

Horses are not regarded as baggage or '' baggage in excess of regu- 
lation change-of-station allowance " within the meaning of Army 
liegulations and the act of March 23, 1910 (36 Stat., 255), and where 
an officer on changing station has had transported at public expense 
from his old to liis new station all the horses for which he is legally 
entitled to forage, the Government has discharged its legal obliga- 
tions with respect to the transportation of his horses. 

Where an officer ships Iiorses in excess of the number he is legally 
entitled to forage for, such horses should be transported at his own 
expense and on a commercial bill of lading and not on a GoA^ernment 
bill of lading. 

(18 Comp.^Dec, 494, Jan. 2, 1912.) 



OPINIONS OF THE ATTORNEY GENERAL. 

CONTRACTS : Modifications of and payment of damages. 

The Secretary of tlie Xavy may insert in the contracts for vessels 
constructed under authority of the act of March 4, 1911 (36 Stat., 
1265), a provision for making changes in said contracts and for deter- 
mining the amount of increased or diminished compensation arising 
therefrom, whether such compensation be of the nature of liquidated 
or unli<|uidate(l damages. 

(29 Op. Atty. Gen.,' 285, Dec 21, 1911.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 21 

CONTSACTS: Return of, for filing; disclosure of confidential plans. 

The Revised Statutes of the United States provide : 

" Sec. 3744. It shall be the duty of the Secretary of War, of the 
Secretar}^ of the Navy, and of the Secretary of the Interior to cause 
and require every contract made by them se vera 11}^ on behalf of the 
Government, or by their officers under them appointed to make such 
contracts, to be reduced to writing, and signed by the contracting 
parties Avith their names at the end thereof, a copy of which shall 
be filed by the officer making and signing the contract in the Returns 
Office of the Department of the Interior, as soon after the contract 
is made as possible, and within 30 days, together with all bids, offers, 
and proposals to him jnade by persons to obtain the same, and with 
a copy of any advertisement he may ha^e published inviting bids, 
offers, or proposals for the same. All the copies and papers in rela- 
tion to each contract shall be attached together by a ribbon and seal, 
and marked by numbers in regular order, according to the number of 
papers composing the whole return. 

"' Sec. 3745. It shall be the further duty of the officer before mak- 
ing his return, according to the preceding section, to affix to the same 
his affidavit in the following form, sworn to before some magistrate 
having authority to administer oaths: ''I do solemnly swear (or 
affirm) that the copy of contract hereto annexed is an exact copy of 

a contract made by me personally with ; that I made the same 

fairly without any benefit or advantage to myself, or allowing any 

such benefit or advantage corruptly to the said , or any other 

person: and that the papers accompanying include all those relating 
to the said contract, as required by the statute in such case made and 
provided.' " 

On application of the Secretary of the Interior for opinion as to 
whether a certain affidavit annexed to a contract sent to him for 
filing, and containing tlie statement that the accompanying papers 
included all those relating to said contract except certain plans which 
were confidential and could not be divulged without detriment to the 
public interests, was in compliance with the law. 

Ileld^ that while the sufficiency of the return of a contract by the 
Secretary of the Navy is not a question of law arising in the admin- 
istration of the Department of the Interior, and therefore is not one 
upon which the Attorney General is required to render an opinion, it 
is proper that the Secretary of the Interior should be advised whether 
the case submitted presents a violation of the statute, since it is his 
duty to call apparent violations of the statute to the attention of the 
Department of Justice. Held further^ that in making the return of 
a contract on belialf of the Government, as provided for in sections 
3744 and 3745 of the Revised Statutes, it is not required to accom- 
pany such contract with copies of plans that are confidential and can 
not be divulged without detriment to the public interests, and the 
affidavit may except such plans from the return. 

(29 Op. Atty. Gen., 293, Jan. 17, 1912.) 



EIGHT-KOUa DAY: Subcontractors. 

The naval appropriation act of March 4, 1911 (3G Stat., 1287-88), 
makes appropriation for submarine torpedo boats and for the con- 
struction and machinery of vessels, and provides that no part of said 



22 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

api)ropriations shall be expended for the construction of any boat or 
for the construction of any battleship "'by any person, firm, or cor- 
poration which has not, at the time of the commencement and during 
the construction of said vessels, established an eight-hour working 
day for all employees, laborers, and mechanics engaged or to be 
engaged in the construction of the vessels named herein.'' 

Held that — 

The provisions in the naval appropriation act of INItirch 4, 1911 
(36 Stat., 1288), relating to an eight-hour workday for employees 
engaged in the construction of the vessels therein authorized, are not 
limited to the employees of contractors, but apply to employees of 
subcontractors engaged in the actual construction of said vessels. 

Under the eight-hour restrictions of said act, the person, firm, or 
corporation actually constructing any of the vessels therein specified 
must established an eight-hour workday for all of its employees en- 
gaged in making any of the parts of the vessel and in assembling 
those parts upon their c<mipletion. 

These eight-hour restrictions prohibit the working of employees 
more than eight hours a clay in the construction of said vessels and 
their machinery, and they can not be nullified by permitting the em- 
ployees by contract with their employers to work overtime for addi- 
tional compensation. 

(29 Op. Atty. Gen., 279, Dec. 21, 1911.) 



MILITIA: Acceptance of office in National Guard of a State by an officer 
on the active list of the Eegular Army, 

Section 1222, Revised Statutes, provides: 

"Xo officer of the Army on the active list shall hold any civil office, 
whether by election or appointment, and every such officer who 
accepts or exercises the functions of a civil office shall thereby cease 
to be an officer of the Army, and his commission shall be thereby 
vacated." 

Upon an application by the Secretary of War for an opinion upon 
the question, whether an officer on the active list of the Regular 
Army may accept the office of colonel in the National Guard of the 
State of Massachusetts without violating the provisions of section 
1222 of the Revised Statutes, and without incurring the penalties 
named therein — 

Held., that an officer on the actiAC list of the Regular Army may 
accept the office of colonel in the National Guard of a State without 
violating the provisions of section 1222 of the Revised Statutes. But 
added, that whetlier the acceptance by an officer of the Army of an 
office in the National (ruard of a State would be inconsistent with the 
policy expressed in tlie Constituticm and laws of the United States 
with respect to these two establishments, and whether there are not 
reasons other than those C(mtained in section 1222 of the Revised 
Statutes which would make it illegal or improper for an officer of the 
Army to subject himself to conflicting State jurisdiction, arc matters 
upon which he expresses no o])inion. 

(29 Op. Atty. Gen., 298, Jan. ;U, 1912.) 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 23 

MILITIA: Authority of the President to send outside of the United States. 

The Constitution, which enumerates the exclusive purposes for 
which the militia may be called into the service of the United States, 
affords no warrant for the use of the militia by the (leneral Govern- 
ment except to suppress insurrection, repel invasions, or to execute 
the laws of the Union, and hence the President' has no authority to 
call forth the organized militia of the States and send it into a for- 
eign countr}' with the Regular Army as a part of an army of occu- 
pation. 

{•j& Op. Atty. Gen., :3-2:2, Feb. IT, 1912.) 



OFFICERS OF THE ARMY: Appointment; commission issued in the name 
of a deceased person. 

Capt. John T. Haines became entitled by seniority to promotion to 
the grade of major of cavalry March o, 1911, was nominated to the 
Senate by the President on May 4, 1911, for promotion, and the 
nomination was confirmed May 15, 1911. He had died May 11, 1911. 
Held,, that a commission as major of cavalry can not be lawfully 
issued in the name of an officer of the Army whose death occurred 
after he was nominated to that grade by the President but prior to 
the time the nomination was confirmed by the Senate. It is essential 
to the creation of sucli office that there sliould be an appointment by 
the President, in addition to a nomination to, and consent by, the 
Senate. 

(29 Op. Atty. Gen., 25J:, Sept. 22. 1911.) 



TAXATION: Philippine customs stamp tax; Government property. 

Section 284 of act Xo. 355 of the Philippine Commission, as 
amended (Sec. 10(30 of the Compiled Acts of the Philippine Commis- 
sion of 1907), provides that certain shipping documents relating to 
goods imported into said islands shall not be issued, received, 
granted, or recognized unless there shall be attached thereto certain 
customs stamps, as specified in the act, of denominations of fi'om 40 
cents to $4. Philippine currenc}', according to the character of the 
instrument, the size of the Aessel, or the value of the goods involved. 
This stamp was demanded for the entry of certain goods belongiug to 
the United States imported into the Philippine Islands for the use 
of the Army. Held, that the stamp is a tax and not a reimbursement 
for services performed, and that so far as the act in question covers 
goods of the United States imported into the islands, it is illegal and 
\oid as being bevond the competency of the Philippine Government. 

(Op. Atty. Gen., June 8, 1912.) 



WAR: Neutrality; importation of arms and ammunition; words £ind 
phrases. 

The words " arms or munitions of war," within tlie meaning of the 
joint resolution of March 14, 1912. authorizing the President by 
proclamation to prohibit the export of arms or munition.s of war to 



24 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ail}" American conntry in which conditions of domestic violence are 
found to exist, embrace weapons iised for the destruction of life, 
together with ammunition and equipment useful in connection with 
them, and explosives and other equipment of a militar}- character, or 
articles used for the construction of such equipment. 
(29 Op. Atty. Gen., 375, Mar. 25, 1912.) 



DECISIONS OF THE COUSTS. 

CONTRACTS: Acceptance of bids; alternative bids. 

The Government advertised for bids to be submitted upon two al- 
ternative plans for the construction of certain public works and 
notified the bidder upon both plans that it would accept its bid, with 
the proviso that six months should elapse within which to decide 
between the two plans. The bidder hacl given the usual bond con- 
ditioned for entering into the contract within GO days after the open- 
ing of the bids. After the expiration of said period of GO days the 
Government notified the bidder that it would accept the bid upon one 
of the plans specified, but the bidder refused to enter into a contract. 
Held, that the Government having accepted a bond limiting the 
period of acceptance to GO days, it can not now claim that it hacl 
more than CO clays in wdiich to elect to accept or reject the bid, and 
that the acceptance, with the proviso that it would take six months 
within which to decide which of the two plans it would adopt, was 
not such an acceptance of the bid as required. 

(Judge Lacombe on motion to dismiss complaint in the case of 
United States v. Carlin Constrvction Co. and the Illinois Surety 
Co.. United States District Court. Southern District of XeAV York, 
May, 1912.) 

CONTBACTS: Cost of work; extra work. 

The Secretary of the Interior entered into a contract for the con- 
struction of a dam and irrigation works for the Huntley reclamation 
project in the State of Wyoming, said contract providing for pay- 
ment for certain extra w^ork at the necessary cost thereof plus 15 per 
cent. The contractor, in the performance of such work, incurred 
expenses for the insurance of employees against liability for accidents 
and claimed this as a part of the necessary cost of the work, together 
with the depreciation of his plant. Held, that while ordinarily ex- 
))enses for the insurance of men and the depreciation of a plant are 
included in a contractor's bid, and, as respects the work covered by 
the specifications, apply in this contract, the cost of the Avork not so 
included should include such expenses as a part of the "actual 
necessary cost thereof." 

{Locell v. United States, Court of Claims, Apr. 8, 1912, No. 30359. 
Kevei'sing 14 Com}). Dec, 297.) 



CONTRACTS: Warranty of existing conditions; excuses for delay in com- 
pleting contract. 

A contract providing for the repair of a dam re(iuired the exc;na- 
tion of material immediately above the dam. The printed specilica- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 25 

tioiis stated that the dam was V backed up for about 50 feet ATith 
broken stone, sawdust, and sediment to a height of within 2 or 3 feet 
of the crest/' The specifications further stated that each bidder was 
expected to visit the site of the work and ascertain the nature thereof 
and obtain information necessary to enable him to make an intelligent 
proposal. After work was begun it developed that the space above 
the dam was occupied by the cribwork of an old dam, instead of 
by the material stated in the specifications. Held^ that the cost of 
additional inspections for the period of delay occasioned by tlie 
extra time required for removing the cribwork of the old dam should 
be charged against the contractor, since the statement in the speci- 
fications of the character of the material back of the dam did not 
amount to a warranty, because the bidder had been invited to inspect 
the work before submitting his proposal. 

{Ilollerlxuh ct' May v. United States, Court of Claims, No. 29952, 
Feb. 12, 1912.) 



INDIANS: Introducing intoxicpt^ting liquors into the country formerly 
comprising the Indian Territory. 

Before the admission of Oklahoma as a State, the act of oMarch 1, 
1895 (28 Stat., 697), forbade the manufacture or sale in or the intro- 
duction into the Indian Territory of intoxicating liquors. General 
statutes forbade the introduction of any such liquors into the Indian 
country or the sale thereof to the Indians. The enabling act under 
wdiich the State constitution of Oklahoma was formed and the State 
admitted into the Union provided also against the introduction of 
such liquors into the original limits of the Indian Territory from 
other points within the State, and preserved the jurisdiction of Con- 
gress over the Indians and their lands. Held, that the act of March 
1, 1895, is still in force as a Federal statute, and a person who shi])s 
intoxicating liquors from an adjoining State into the limits of the 
Indian Territory, as it formerly existed, although to that portion of 
it where the Indian title has been extinguished, violates the provi- 
sions of said act, and the district court of the United States has 
jurisdiction to punish him for such violation. 

{In re Webb, Decision of U. S. Supreme Court, June 10, 1912.) 



PATENTED INVENTIONS: Use of by United States. 

On June 8, 1907, the Fried Krupp Co., a corporation, organized 
under the laws of the German Empire, brought suit in the Supreme 
Court of the District of Columbia against the Chief of the Ordnance 
Department of the United States Army to enjoin him from manufac- 
turing and using certain improvements in gims and gun carriages, 
which the complainant claimed were covered by United States pat- 
ents owned by it. It was admitted that the defendant was the Chief 
of Ordnance of the United States Army ; that field guns and gun car- 
riages embracing the improvements in question were being manufac- 
tured and would continue to be manufactured for the use of the Ord- 
nance Department of the United States; and that tlie defendant de- 
rived no profits therefrom. A demurrer to the bill was sustained and 



2G DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the same disniissed, but the Court of Appeals reversed the decision 
and remanded the case for further proceedings, and the case was then 
removed bv certloTart to the Sui)reme Court of the United States. 
Held., that since the act of June 25, 1910 (36 Stat., 851), providing 
that when an invention secured by letters patent is used by the 
United States without the license of the owner the latter may recover 
leasonable compensation therefor in the Court of Claims, a suit for 
an injunction will not lie against an officer of the United States man- 
ufacturing or using such patented invention for the (Jovernment, the 
law having thus provided a method whereby the owner may obtain 
compensation. 

{Fried Krupp Co. v. CrozleryV. S. Supreme Court, Apr. 8, 1912.) 



TRANSPORTATION: Government bill of lading; loss occasioned by un- 
precedented flood. 

A quantity of books were shipped on a Government bill of lading 
and clestroyed by the unprecedented floods of 190o in Kansas City, 
Mo., while in possession of the transportation company. Their value 
was deducted, in making settlement, from sums admitted to be due to 
said company. The bill of lading contained no special contract of 
exemption of the carrier from its general liability, and the usual 
freight rate was charged. Ileld^ that the loss was occasioned by ono 
of the two instrumentalities excepting common carriers from their 
general liability as insurers of goods while in transit, to wit, the act of 
Ciod and the public enemy, and that the company was not responsible 
for the loss and is entitled to judgment for the amount retained. 

(Missouri Pacific Railway Co. v. United States^ Court of Claims, 
Ko. 30010, Feb. 12, 1912.) 



BULLETIN 20. 

Bulletin 1 WAE DEPARTMENT, 

No. 20. J Washington, October 19, 1912. 

The followino: dio'est of opinions of the Judge Advocate General 
for the period from July 1 to September BO, 1912, inchisive, and digest 
of decisions of the Comptroller of the Treasury and opinions of the 
Attorney General are published for the information of the service 
in general. 

"[1931376 A— A. G. O.] 

By order or the Secretary of War : 

W. W. WOTHEPxSPOOX, 

Major General , Acting Chief of Staff. 
Oeficial : 
GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ABSENCE: Leave of; employees at the West Point, N. Y.. Military Acad- 
emy; laws relating" to leaves of absence for employees in gun factories 
and arsenals. 

The act of February 1, 1001 (31 Stat., 716), authorizes fifteen days 
of annual leave with pay, under the conditions specified therein, for 
" each and every employee of the navy yards, gun factories, naval 
stations, and arsenals of the United States," and the act of March 3, 
1009 (35 Stat., 7.55), provide for "leave of absence not to exceed 
fifteen days in any one year, which leave may, in exceptional and 
meritorious cases, where such an employee is ill, be extended, in the 
disci-etion of the Secretary of the Navy, not to exceed fifteen days ad- 
ditional in any one year," for per diem employees forming part of 
the "clerical, drafting, inspection, and messenger force at the navy 
yards, naval stations, and other stations and offices under the Naval 
Department." HelcL that while the statutes are very comprehensive 
as to certain employees of the Navy Department in respect to leave 
of absence, the provision for such leave to similar employees in the 
War Department is limited to those engaged in "gun factories" and 
" arsenals " mentioned in said act of February 1, 1901, and that per 
diem employees of the Military Academy do not come within the act 
and there is no authority for the allowance to them of leave of ab- 
sence with pay. They can only be paid for the days they work and 
can not be allowed leave with pay for Saturday afternoons for the 
months of Julv. August, and September. 

(2-153, July 13, 1912.) 

27 



28 DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 

ABSElvCE WITHOUT LEAVE: Arrest and confinement by civil authorities; 
condonation of oifense and discharge. 

A soldier was iirresled by the civil authorities, charged vrith se- 
duction. After his arrest he married the girl whom he was charged 
Avith sedu.cing, which fact under the law of the State coidd be pleaded 
in bar of the prosecution for seduction, and he was consequently 
discharged without trial. 

Paragraph 1304, Army Ecgulations, 1910, provides that — 

*•' Officers and enlisted men in arrest and confinement by the civil 
authorities will receive no pay for the time of such absence; if re- 
leased without trial, or after trial and acquittal, their right to pay 
for the time of such absence is restored." 

TJeld, that while the soldier came ^^ ithin the strict language of the 
regulation he did not come within its meaning. Through his own 
fault he has not rendered tlie services contemplated by his contract 
of enlistment and his marriage to the girl after his arrest is not evi- 
dence of his innocence, but rather an admission of his guilt. His 
absence following such arrest and until his restoration to duty should 
be considered as absence without leave for which he is not entitled 
to pav. 

(72-211, Sept. 16, 1012.) 



ABSENCE WITHOUT LEAVE: Making good time lost. 

On consideration of the question of making good time lost by 
absence without leave and consequent confinement therefor awaiting 
trial and in serving sentences. Held., that time spent in confinement 
awaiting trial and serving sentence for the offense of absence with- 
out leave during the period of a soldier's enlistment is not time re- 
quired to be made good by the act of May 11, 1008 (35 Stat., 109), 
or by paragraph 130, Army Regulations, 1910, interpreting the law. 
Beld further., that if the end of a man's enlistment finds him 
with time to be made good by reason of such unauthorized absence, 
and he is then in confinement awaiting trial or serving sentence be- 
cause of said absence, his service to make good time lost does not be- 
gin to run until he is released from confinement. 

(2-234, Sept. 9 and 10, 1912.) 



APPROPBIATIONS : Lease of public building by one department to an- 
other; works of improvement or repair. 

A building belonging to the Treasury Department is leased by the 
War Department, and it is desired to install a window therein for 
the benefit of such use by the War Department. Held., that this is 
an improvement or betterment of the building and not a. repair, and 
that there is no appropriation of the War Department that can be 
used for the installation of said window; but adrUed that the same 
might be arranged foi- as a part of the rental and the installation 
made at the expense of the appropriation from which the rental is 
paid. 

(5-111. Aug. 19, 1912.) 



DIGEST OF OPIXIONS OF THE JUDGE ADVOCATE GENERAL. 29 

ARMY: Organization of; detail as principal assistant to Chief of Bureau 
of Insular Affairs. 

An officer was detailed as a-sistant to the Chief of the Bureau of 
Insular Affairs, War Department, pursuant to the provisions of the 
avt of March 2, 1907 (34 Stat.. 116-2), which act provides that the 
provisions of section 27 of the act of Februar}^ 2, 1901 (31 Stat., 
755), Avith reference to the transfer of officers of the line to the de- 
partments of the stalf for tours of service, shall apply to the vacancy 
created by said detail and the return of said officer to the line. Ilehl., 
that as the detail was made pursuant to said act of March 2, 1907, 
wliich makes no mention of the length of the detail, and not under 
section 26 of said act of February 2. 1901, which provides for details 
of four years' duration, the term of the detail is not limited to four 
years, and that the officer so detailed did not by operation of law be- 
come a supernumerary officer of the line at the expiration of four 
year.s from the date of his detail. 

(14-123.8, Aug. 13, 1912.) 



ARMY: TJse of officers of in the reorganization of the Panama police force. 

lipon request by the Secretaiy of War for an opinion as to the ad- 
visability of reorganizing the police force of Panama under the 
supervision of officers of the Army of the United States, in view of 
(he reported condition of police affairs in the cities of Colon and 
Panama. IleM, that the President, in his discretion and without the 
consent of Congress, and acting under Article VII of the treaty with 
Panama of November 18, 1903 (33 Stat., 2234), may order such of- 
ficers of the Army as he deems proper to the cities of Colon and 
Panama and to points within the territories and harbors adjacent 
thereto, to maintain order, and for this purpose to reorganize the 
Panama police force or take such other steps as may be necessary to 
carry out the purposes of the President: Provided., howecer., that 
such officers shall be and remain at all times solely under the au- 
thority of the United States. Held further, that the President may 
not, without the consent of Congress, detail officers of the Army to 
serve under the Republic of Panama for the purpose of reorganiz- 
ing the police force or for any other purpose. 

"(92-500, Aug. 19, 1912.) 



ARMY BANDS: Use of during sessions of the International Congress of 
Hygieiie and Demography. 

On application foi- the services of the Engineer Band and the Fort 
Myer Band for the XVth International Congress on Hygiene and 
Demography, Held, that Avhile bands of the Army may be ordered 
to fuinish music as a duty devolving upon them, the propriety of 
their use under any given conditions is to be determined by the rnili- 
tarv authoritv having power to issue the necessary orders. 11 eld 
further, that "under the act of May 11, 1908 (35 Stat., 110), Army 
bands or members thereof stationed in or near Washington may not 
supidy music for hii'e within the District of Columbia if they come 
into competition with other musicians. 

(8-400, Sept. 4, 1912.) 



30 DIGEST OF OPTXIONS OF THE JUDGE ADVOCATE GENERAL. 

ARMY TRANSPORTATION: Sleeping-car accommodations for enlisted 
men. 

A private soldier travelinii- under orders alone was furnished by 
the depot quartermaster with tourist sleeping-car acconinio(hitions, 
but with first-class ticket transportation, second-class tickets between 
the points of travel not being obtainable. Paragraph 1143, Army 
IJegidaticms, 1910, provides thai — 

'• Tourist sleeping cars will be provided for troops on the basis of 
three men to a section when the journey involves spending a night 
on the train : but when the niunber of troops is too small to justify 
the hiring of tourist sleepers, second-class transportation with tourist 
sleeping-car accommodations on the same basis may be furnished. 
AMien the number is less than three, each man will be furnished with 
a berth." 

A letter of the Quartermaster General subsequent to the furnishing 
of the transportation interpreted this regulation to mean that no 
sleeping-car acconimodations could be furnished enlisted men except 
wliere second-class transportation was also furnished. Held., that 
tourist sleeping-car acconunodations may be obtained where avail- 
able, even though second-class transportation can not be purchased 
for the same journey, and also that if sleeping-car accommodations 
to which a soldier may not be entitled are actually furnished to and 
Used by him the cost thereof can not be charged against the soldier. 

(9-1-^240, Sept. 9, 1912.) 



ASSOCIATIONS: Expenses of an officer detailed to attend the meetings of 
the International Eugenics Congress. Section 8 of act of June 26, 
1912. 

Section 8 of the act of June 20, 1912 (Public Xo. 201), provides — • 

" Xo money appropriated by this or any other Act shall be ex- 
pended for membership fees or dues of any officer or employee of the 
United States or of the District of Columbia in any society or asso- 
ciation or for expenses of attendance of an}^ person at any meeting 
or convention of members of any society or association, unless such 
fees, dues, or expenses are authorized to be paid by specific aj^pro- 
priations for such purposes or are provided for in express terms in 
some general appropriation."' 

It was proposed to detail an officer of the INIedical Corps of the 
Army to attend the International Congress of Eugenics to be held in 
London, England, during the month of July, 1912. IlelJ^ that the 
International Congress of Eugenics is a society or association within 
the meaning of the law and that the expenditure of any money appro- 
priated for public purposes for the expenses of an officer of the Army 
detailed for attendance upon such Congress is forbidden. 

(94-210, July 3, 1912.) 

XoTE. — Secti(m 10 of the Snndry Civil Act approved August 24, 
1912 (Public Xo. 802), ])ostpones the operation of section 8 of the 
act of June 2(). 1912. supra, during the fiscal year 1913, except to the 
extent that it |)rohibi(s the payment of membership fees or dues, but 
requires Avritten authorization from heads of departments for incur- 
ring expenses of attendance upon meetings of members of any society 
(<r associaticsn. 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 31 

ASSOCIATIONS: Attending meeting's of business associations; payment of 
membership dues in the International Association of Chiefs, of Police. 

Section 8 of the act approved June 26, 11)12 (Public Xo. 201), ap- 
propriating for the expenses of the District of Columbia provides : 

" Xo mcjney appropriated by this or any other Act shall be ex- 
pended for membership fees or dues of any officer or employee of the 
Ignited States or of the District of Columbia in ixny society or asso- 
ciation or for expenses of attendance of any person at any meeting 
or convention of members of anv society or association, unless such 
fees, dues, or exp^enses are authorized to be paid by specific appro- 
priations for such purposes or are pro^■ided for in express terms in 
some general appropriation." 

Upon consideration of the question as to whether or not said law 
operates to prevent the payment of traveling expenses of employees 
of the Quartermaster's Department in attending meetings of trans- 
continental passenger associations, tariff classification committees, 
associations or committees having to do with marine matters, or asso- 
ciations or committees in connection with heating, ligliting, and 
sewerage problems, etc. Held, that the law was not intended to limit 
the means or methods employed by the Government in the exercise 
of its functions (Dec. Comp. Treas., July 20, 1912), and that asso- 
ciations of the character named, so far as they relate to the business 
of the Government, do not come within the meaning of the law, and 
the expenses of officers or employees of the Government in attending 
upon such meetings as are necessary or proper in connection with 
the transaction of the Government business may be paid. IleJd 
further, that a membership fee in the International Association of 
Chiefs of Police for The Adjutant General may be paid if necessary 
or proper in procuring information concerning probable deserters or 
escaped military prisoners. 

(91-210, July 25, 1912.) 

XoTE. — The operation of section 8 of the act of June 26, 1912, 
supra, was in part postponed bv section 10 of the Sundrv Civil Act 
of August 21, 1912 (Public Xo.'302), during the fiscal year 1913. 



AVIATION CORPS: Flight on Labor Day without orders; line of duty. 

On consideration of the question as to Avhether an officer detailed t;> 
the Aviation Corps, permitted but not ordered to make a fight on 
Labor Day, on the occasion of a celebration of the day by labor 
(»rganizations, if sustaining an accident during such flight, the acci- 
dent Avould be in the line of duty. Held, that it is the duty of the 
officer under his detail to make practice flights to fit himself for tho 
service and to advance the science and art of aviation in its relation 
to the military service, and that the fact that the particular flight is 
not ordered but only permitted, or that it is made on the occasion of 
the labor celebration, should not be regarded as taking the offi.cer out 
of the line of dutv. 

(51-020. July 21. 1912.) 

CERTIFICATE OF MERIT: Time of making recommendation therefor; pay 
under subsequent enlistment. 

A soldier performed an act of meritorious service for which the 
captain of his company recommended that he be granted a certificate 



32 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

of merit in pursuance of section 1216, Revised Statutes. The recom- 
mendation was approved by the officer commanding his regiment 
while the soldier was still in the service, but said officer was not in 
actual command at the time of the performance of the meritorious 
act. The papers were forwarded to Washington for official action 
but were returned for the approval and recommendation of the officer 
commanding the regiment at the time the meritorious service was 
performed. This officer returned the papers with his approval and 
recommendation that a certificate of merit be granted, but before 
final action could be taken the soldier had left the service and the 
certificate was not granted. The soldier reenlisted after more than 
three months and is now in the service. Section 1216, Revised Stat- 
utes, as amended by the act of March 29, 1892 (27 Stat., 12), pro- 
vides — 

"• When any enlisted man of the Army shall have distinguished 
himself in the service the President may, at the recommendation of 
the commanding officer of the regiment or the chief of the corps to 
which such enlisted man belongs, grant him a certificate of merit." _ 

IlehL that under said statute the commanding officer of the regi- 
ment or the chief of the corps to which the enlisted man belongs must 
make such recommendation before the soldier leaves the service, but 
this commander need not be the one in actual command at the time 
the meritorious service was performed. 

Held further, that under the act of February 9, 1891 (26 Stat., 
737), a soldier reenlisting is entitled to receive the additional pay 
carried by the certificate of merit earned in a former enlistment, not- 
withstanding that such service may not be continuous. 
(46-200, Aug. 20; 1912.) 

CLEBKS AND EMPLOYEES: Clerk in the Subsistence Department at large; 
admission to the Government Hospital for the Insane after discharge. 

A clerk in the Subsistence Department of the Army at large was 
granted a 30 days" leave of absence and before its expiration became 
msane and w^as admitted to a hospital for the insane for treatment. 
Afterwards he was granted a leave of absence without pay and there- 
after discharged. When discharged he was still insane and imder 
treatment at a State institution. Held, that as the clerk became in- 
sane while in the Government employ, the Secretary of War might, 
in his discretion, under section 4843, Revised Statutes, order his 
admission to the Government Hospital for the Insane, the fact of his 
having been discharged not being a bar to such admission. 

(44-120, Sept. 5, 1912.) 

CLEBKS AND EMPLOYEES: Member of the Militia of the District of 
Columbia; leave of absence. 

A clerk Avho belonged to the National Guard of the District of 
Columbia was temporarily employed to fill a vacancy in the office 
of the Ghief of Engineers pending action on the legislative, executive, 
and jndicial appropriation bill for the fiscal year 1913. On consid- 
eration of the question of his i-ight to leave of absence to attend an 
encampment of said National Gnard under section 49 of the act of 
March 1, 1889 (25 Stat., 779), which provides that 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 33 

"All officers and employees of the United States and of the District 
of Columbia who are members of the National Guard shall be entitled 
to leave of alisence from their respective duties, without loss of pay 
or time, on all days of any parade or encampment ordered or author- 
ized under the provisions of this act." 

Held, that said em]:)loyee was entitled to such leave of absence. 
(58-811, Aug. U, 1912.) 



CLEUKS AJSTD EMPLOYEES : Pay of during suspension for insubordination. 

A clerk of Class I, in the Adjutant General's Office, was orally sus- 
2)ended from duty for insubordination, and afterwards his resigna- 
tion was accepted. He performed no duty after the date of his sus- 
pension. Ileld^ that a clerk in an executive department, although 
held to be an officer of the United States for certain purposes, may 
be suspended for cause by the authority appointing him and is not 
entitled to pay during the period of such suspension. 

It appearing that the Secretary of War had not officially acted 
upon the matter of suspension. Held further^ that he may now do 
so, and if he approves the suspension, the clerk is not entitled to 
pay subsequently to his suspension ; otherwise, if he disapproves the 
same. 

(16-200, Sept. 9 and 13, 1912.) 



CONTHACTS: Competition useless; supplemental contract with original 
contractor. 

Congress authorized the modification of a project for an improve- 
ment of a navigable water under contract, the modification consist- 
ing in the cutting off of bends and the widening of the channel, all 
within the expenditure originally authorized. The facts indicated 
that the price at vvhich the work is done under the existing contract 
is less than what could be obtained if bids Avere invited for the addi- 
tional work separately, and that the introduction of a new contractor 
would create complications which it would be very desirable to avoid. 
Hcld^ that the case should be regarded as one where competition 
would be useless and the work as a proper one for a supplemental 
contract with the existing contractor. 

(76-124, Aug. 19, 1912.) 



CONTRACTS: Penalty for delay in perform.ance; actual damages. 

A contract was made for the repair of a Government steamer, pro- 
viding that the work should be completed within six working days 
and that the United States might, " in the discretion of the Quarter- 
master General, exact a penalty of $25 per day for each and every 
calendar day the work is delayed beyond the date fixed by the con- 
tract for completion." The contractor failed to complete the repairs 
w^ithin the time limit. II eld ^ that the contract provided for a penalty 
and not for liquidated damages, and that the (Quartermaster General 
might exact such less sum per day as he should find sufficient to cover 
the actual damages to the United States by reason of the contractor's 
default in not completing the work within the stipulated time. 

(76-410, July 26, 1912.) 
93668°— 17 3 



34 DIGEST OF OPIXIOXS OF THE JUFJOE ADVOCATE GEXEEAL. 

CONTRACTS: Public building's; architects employed under the authority of 
appropriations. 

Appropriations were made under the act of June 30, 1002 (32 
Stat., 512, 519), for the construction of buihiings for the Engineer 
School and the Army War College at Wafliingtoii Barracks, D. C, 
and subsequent appropriations were made for their completion, in- 
creasing the cost. The only authority to make contracts with the 
architects was contained in the said act of June 30. 1002. Under a 
contract made in pursuance of said act for architectural service. 
II eld ^ that where the only power to enter into a contract arises from 
the existence of an appropriation sufficient to cover the amount con- 
tracted for, the power to contract is limited by the appropriation, 
and that a contract for a larger amount than that appropi-iated for is 
Aoid. even though the contract expressly provided that \t should be 
contingent upon future appropriations. 

The contracting architects in this case were allowed to continue 
their work under subsequent appropriations. Ileld^ that such em- 
ployment was on a qumitum inermt basis and not under their con- 
tract, and that the architects have no rights under their contract to 
be employed as such in the erection of buildings authorized by the 
subsequent act of July 25, 1912 (Public No. 241), providing for the 
construction at the Engineer School of a building with library ac- 
commodations and other facilities for the instruction of officers of tlie 
Engineer Corps in duties pertaining to the improvements of rivers 
and harbors, or any future buildings constructed at the Washington 
Barracks. 

(76-012, Aug. 12, 1912.) 



CONTRACTS: Public works; section 3717, Revised Statutes; separate agree- 
ments. 

Bids were invited and received for the repair of five harl)or boats 
stationed at a fort, and two bids were low for certain portions of the 
work. Section 3717, Revised Statutes, provides: 

'' Whenever the Secretary of War invites proposals for any W(n"ks, 
or for any material or labor for any works, there shall be separate 
proposals and separate contracts for each work, and also for each 
class or material or labor for each work." 

On consideration of the question of whether it would be a violation 
of this section to execute only two contracts for the whole work, in- 
cluding in each contract repairs on two or three boats, or whether it 
would be necessary to make separate contracts for the repair of each 
boat. Beld., that there is no reason why more than one boat might 
not be included in a single contract provided the boats are all at the 
same place and the repairs fall within the same class of material 
or labor. 

(76-350, July 29, 1912.) 

Similarly hidd that separate agreements were not necessary foi- the 
work of painting hospital buildings at different posts, as this is a 
work of i-epair and not one of construction of a public work. 

(76-350, Aug. 27, 1912.) 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXEKAL. 35 

COURTS-MARTIAL: Theft of a blanket by one soldier from another; Arti- 
cles of War, 

The 60th Article of War provides for the punishment of any person 
in the military service of the United States — 

" Who steals, embezzles, knowingly and wilfully misappropriates, 
applies to his own use or benefit, or wrongfully or knowingly sells 
or disposes of any ordnance, arms, equipments, ammunition, clothing, 
subsistence stores, money, or other property of the United States, fur- 
nished or intended for the military service thereof;" 

The 62d Article of War provides for the pmiishment of all crimes, 
not capital, which officers and soldiers may be guilty of to the preju- 
dice of good order and military discipline, though not mentioned in 
the foregoing articles of Avar. Held, that as blankets are novv^ issued, 
not as a part of the soldier's clothing allowance, but as equipage, 
which is placed in the soldier's possession for use while in the service, 
and is retained by the Government when he is discharged, prosecu- 
tions for the theft of such articles by one soldier from another 
should be brought under the 60th Article of War, except in cases 
where the blankets were issued under the old svstem as part of the 
soldier's clothing allov.ance. when the charge should be laid under 
the 6-2d Article of War; but if the charge is laid under either article 
it would be lawful. 

(10-186.5, Aug. 6. 1912.) 



DAMAGES: Torts of Government agents; failure to keep walk in repair. 

A party injured by being tripped on a loose plank, alleged to have 
been negligently allowed to get loose in the sidewalk on the Govern- 
ment Military Eeservation at Fort Niagara, N. Y., is not entitled to 
damages on account thereof from the Ignited States. The Govern- 
ment is not liable for any damages arising from torts or neglects of 
its officers unless it specificallv assumes such liabilities. 

(18-320, Aug. 3, 1912.) 



DESERTERS: Reward for apprehension and delivery of; serving in the 
Navy or Marine Corps. 

Rewards for the apprehension, securing, and delivery of deserters 
from the Arm3^ not to exceed $50 for each one, are provided for by 
annual appropriation acts. Paragraph 121, Army Regulations, 1910, 
provides among other things that — 

" No reward will be paid in the case of a deserter or of an escaped 
military prisoner who is serving in the Army, Navy, or Marine 
Corps." 

Held , that the discretion of the Secretary of War in offering re- 
wards for the apprehension, securing, and delivery of deserters from 
the Army is exercised by said paragraph of the Army Regulations, 
and a soldier deserting from the Army and enlisting in the Navy, 
comes clearly within the provisions of said regulation and no reward 
can be paid for his appi'ehension and return to the Army as a deserter. 

(26-312.2, Sept. 12, 1912; 26-312.3, Aug. 8, 1912.) 



36 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

DISCHARGE: Enlisted man discharged because of dependent foster parent. 

Section 30 of the act of February 2, 1901 (31 Stat., 75G), provides 
for the hoPxorable discharge of a soldier upon his own application, 
after one year's service^ " should either of his parents die leaving the 
other solely dependent upon the soldier for support," A soldier, 
with the consent of his natural parents, had actually been adopted by 
a man and Avife when sixteen months of age, and remained with them 
until he was twenty-five years of age, although no decree of adoption 
had been issued by a court. Held, that he was entitled to his dis- 
charge, upon his own application, after one year's service, upon the 
death of one of such foster parents leaving the other in destitute cir- 
cumstances and dependent upon him for support. 

(28-221, Sept. 27, 1012.) 



DISCIPLINE: Articles of War; charscins- a soldier with failxire to produce 
at inspection clothing previously issued. 

A soldier was charged with the failure to accoimt at inspection for 
sundry articles of clothing issued to him by the United States. Held, 
that if the soldier was merely unable to produce the articles of cloth- 
ing, and if no evidence is available of his having sold the same or lost 
them through neglect, the only offenses made punishable mider the 
ITth Article of War, it would be lawful to charge the soldier either 
under the 60th or 62d Article of War, according to the nature of the 
case. 

(30-211, Aug. 26, 1912.) 

DISCIPLINE: Confinement of military prisoners in the Canal Zone Peniten- 
tiary; appropriation chargeable with the expense. 

T^pon request that arrangements be made with the Isthmian Canal 
Commission whereby military prisoners sentenced to confinement in 
the penitentiary may be confined in the penitentiary of the Canal 
Zone. Held, that the act of the Isthmian Canal Commission of Sep- 
tember 2, 1904, is broad enough to authorize the receipt and detention 
of military prisoners at the Canal Zone penitentiary, if the peniten- 
tiary is properly designated, and that there is no legal objection to 
making the arrangements as requested. The expense of maintenance 
of said prisoners would be a proper charge against the appropriation 
for "' contingencies of the army." 

(92-500, Sept. 16, 1912.) 



EMPLOYEES: Compensation for injury of, while in the service of the 
United States. 

A quarryman employed by the quartermaster at West Point, X. Y., 
was injured while so employed by a large block of stone falling upon 
him, by reason of which he was confined to the hospital for about two 
weeks. The act of May 30, 1908 (35 Stat., 556), provides for compen- 
sation to artisans or lai3orers in the United States' employ for injuries 
sustained by them in the course of their employment "in any of its 
manufacturing establishments, arsenals, or navy yards, or in the con- 
struction of river and harbor or fortification work or in the hazardous 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENEEAL. 37 

employment on construction work in the reclamation of arid lands 
or the management or control of the same, or in hazardous employ- 
ment under the Isthmian Canal Commission."' 

Held^ that the law does not include employment by the Quarter- 
master's Department at a military post, and that the person injured 
in this case is not entitled to compensation under the provisions of 
said act. 

(18-330, Sept. 5, 1912.) 

ElMPLO YEES : Payment of, from lump-sum appropriations; Acts of August 
26, 1912, and August 23, 1912. 

Section 7 of the Deficiency Appropriation Act of August 26, 1912 
(Public No. 340), provides that 

*' No part of any money contained herein or hereafter appropriated 
in lump sum shall be available for the payment of personal services 
at a rate of compensation in excess of that paid for the same or simi- 
lar services during the fiscal year nineteen hundred and twelve; nor 
shall any person employed at a specific salary be hereafter transferred 
and hereafter paid from a lump-sum appropriation a rate of compen- 
sation greater than such specific salary, and the heads of departments 
shall cause this provision to be enforced." 

A similar provision is found in section 3 of the Legislative, Execu- 
tive, and Judicial Appropriation Act of August 23, 1912 (Public No. 
299), except that said act refers only to lump-sum appropriations 
contained therein. 

Ileld^ that while said legislation prevents an increase of the com- 
pensation of employees paid from such lump-sum appropriations 
above the amounts paid for the same or similar services during the 
fiscal year 1912, it does not prevent the promotion of such employees 
from one class or position to another in a classification designed to 
indicate the different degrees of experience or efficiency. Held fur- 
ther^ that while the first part of the law of August 26, 1912, relating 
to increase in compensation applies only to the appropriations con- 
tained in the act and to similar appropriations thereafter made, the 
second portion applies to all such appropriations whenever made. 
(Decs. Comp. of Treas., Sept. 5 and 9, 1912.) 

(5-075, Sept. 19, 1912.) 

ENLISTED MEN: Absence without leave; detained by civil authorities. 

A soldier while absent without leave was detained for about ten 
days serving sentence imposed by civil authorities. Upon release and 
before he had had an opportunity to return to his station he was re- 
arrested, and upon trial one week later was acquitted. Held., that 
having incurred the status of absence without leave through his own 
fault, such status continued during the period of his second confine- 
ment although he was subsequently acquitted of the cause which led 
to such confinement. 

(2-230, July 30, 1912.) 

ENLISTED MEN: Disposition of the effects of deceased soldier; jurisdiction. 

A retired enlisted man died at a post hospital on a military reser- 
vation over which exclusive jurisdiction has been ceded to the United 



38 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

States, leaving monej'' and other personal property in the possession 
of the hospital authorities and also a will disposing of the same. 
Held, that in carrying out the provisions of paragraph 162, Army 
Regulations, 1910, the proper procedure would be to notify the 
legatees under the will that the eifects of the deceased soldier will be 
turned over to the legal representative appointed by the court of the 
domicile of the deceased, and that if no application be made tlierefor 
within a reasonable time the same will be disposed of as provided in 
the Armv regulations. 
(10-210. Aug. 9, 191-2.) 



ENLISTMENT: Second enlistment of deserter; discharg'e from first enlist- 
ment and holding him. to the second. 

Where a deserter serving in a fraudulent e'.ilistment is placed in 
confinement by the military authorities charged with desertion from 
a prior enlistment and fraudulent enlistment wliile in desertion. 
Held., that such confinement constitutes a decision on the part of the 
military authorities to consider the soldier as in his first enlistment 
and ainounts to a suspension of servic-e under his second enlistment. 

The soldier, while undergoing confinement, under sentence for the 
desertion and fraudulent enlistment, was discharged without honor 
from his first enlistment and held to his second. Held, that time 
thereafter spent in confinement for the desertion and fraudulent 
enlistment counted on his second enlistment. 

(34-310, Aug. 5, 1912.) 



GOVERNMENT AGENCIES: Barber shops, billiard and pool tables; Dig. 
Op. J. A. G., 1912, Government Agencies, VII, corrected. 

General Orders, Xo. 28, W. D., February 28, 1911, provides that 

'• The establishment of company barber shops and of company bil- 
liard and pool tables from which revenues may be derived, is au- 
thorized. Ail funds accruing therefrom will be accounted for as part 
of the company fund." 

Held, that the effect of the above order was not to make the barber 
.shop and billiard and pool tables governmental agencies to the ex- 
tent that Avould permit the stoppage of a soldier's pay to meet his 
obligations thereto. 

(C. 23694, June 27, 1911.) 



GOVERNMENT HOSPITAL FOR THE INSANE: Admission of an enlisted 
man to; legal residence. 

A man enlisted in the coast artillery corps at Baltimore. Md., giv- 
ing that State as his legal residence, and lat«M- was admitted to a 
post hospital and his case diagnosed as melanclsolia. Later he was 
discharged on sui-geon's certificate of disability, ""not incus-red in line 
of duty," and turned over to the officer on duty at the rontral police 
station at Baltimore. He had i)reviously served an enlistment in the 
navy when he gave his residence as Baltimoiv County, Maryland. 
Upon application by his mother to have him admitted to the (lov- 



DIGEST OF OPINfOXS OF THE JUDGE ADVOCATE GENERAL. 39 

ernment Hospitisl for the Insane. Ileld^ tliat a soldier does not lose 
his legal residence by absence in the service of the United States 
and that the man should still be considered as a resident of the State 
of Maryland. Being such resident the obligation to supjjort him 
rests with the authorities of that State and no further action should 
be taken by the War Department. C. 19208, July 25, 1910. 
(11-100, Aug. 9, 1912.) 



GOVEENMENT HOSPITAL EOS, THE INSANE : Admission of a member 
of the family of an officer to. 

Where inquiry vas made as to whether the widow of an officer of 
the Army might be admitted to the Government Hospital for the 
Insane. Held., that the hospital exists as set forth in section 4838, 
Kevisecl Statutes, for the care and treatment of the insane of the 
Army and Navy and of the District of Columbia; that section 1813, 
Revised Statutes, as amended, restricts patients from the Army to 
certain distinct classes of persons, which do not include the family of 
an officer; and that, therefore, the widow of an officer, as such, is 
not entitled to entei- as a patient the hospital in question. 

(llr-134, July 21, 1912.) 



INTOXICATING LIQUORS: Introduced into the old Indian Territory. 

The modified authority granted to the War Department under 
section 2139. Revised vStatutes, as amended, to grant permits for the 
introduction of intoxicants into the Indian country in certain cases, 
has been nullified by section 3 of the enabling act of the State of 
Oklahoma approved June 16, 1906 (34 Stat., 269), in so far as it 
regards the old Indian Territory, the Osage nation, and any other 
parts of the State which existed as Indian reservations on January 
1, 1906. While under the above section of the Revised Statutes the 
War Department granted at times permits for the introducti<m of 
intoxicants into the Indian country, it was only where cases were 
presented requiring wine or alcohol for the use of hospitals, in rare 
cases for individual patients, and where wine was needed for sacra- 
mental purposes. The War Department has never granted permits 
for the introduction of intoxicants for the purpose of sale. The 
Oklahoma Enabling Act forbids the introduction of intoxicants into 
the territory abo^■e mentioned, except through State agencies estab- 
lished under the laws of the State of Oklahoma. 

(48-221, July 13, 1912.) 

JUDGE ADVOCATES GENERAL: Dig-est of opinions of; manner of citing. 

In the matter of the manner in which the Digest of Opinions of the 
Judge Advocates (xeneral. edition of 1912, should be cited, ad) vised 
that the same be cited by page, adding the last letter or figure char- 
acterizing the particular paragraph on the page to which reference 
is made. For example, under the head of Discipline on page 535 
will be found a paragraph designated as follows; XI A 17 a (2) 
(a) [11 [el [A]. This should be cited as ^- Dig. Op. J. A. G., 1912, 
p. 535 [A]." 

(50-030, Sept. 20, 1912.) 



40 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENEEAL. 

MILITARY ACADEMY: Engineer detachment; status of; act of August 9, 
1912. 

In construing the provision with reference to the engineer detach- 
ment at the United States Military Academy antliorized by act of 
August 9, 1912 (Public No. 253), making appropriation for said 
institution. Ildd., that said detachment is in excess of the enlisted 
strength of the engineer corps, and the men composing it make up an 
organization of their own attached to the Military Academy. 

Held further^ that the vacancies heretofore kept open in the vari- 
ous engineer companies for the purpose of maintaining the said en- 
gineer detachment stand released and may be filled by enlistment. 

(8-110, Sept. 4, 1912.) 

MILITARY ACADEMY: Engineer detachment; distribution of the profits 
of the post exchange after the act of August 9, 1912. 

General Orders provide that a certain amount of the profits of a 
post exchange shall be distributed — 

" 2. Where the members belong to the Corps of Engineers it will 
be paid to the Engineer Band. 

* :;: :.'; :!•• * * :^ 

'' 4. Where the members belong to organizations having no band, 
it will be paid to the band serving at the post if there be one, other- 
wise to such members." 

The act of August 9, 1912 (Public No. 253, p. 3), appropriating for 
the Military Academy for the fiscal year 1913. provides that — 
" Hereafter there shall be maintained at the United States Military 
Academy an engineer detachment which shall consist of'"' — a certain 
munber of noncommissioned officers and privates. 

Held., that such detachment, although retaining its character of 
engineer troops, becomes an independent organization pertaining to 
the Military Academy alone and removed from the Corps of Engi- 
neers as a part of that organization; and, not having a band, its pro- 
portion of the profits of the post exchange, coming within the opera- 
tion of said (reneral Orders, should be paid to the band serving at 
the post. 

(8-140, Aug. 24, 1912.) 



MILITARY JURISDICTION: Civil Service employee of the Quartermaster's 
Department at Fort Bayard, New Mexico. 

It Avas reported that a Civil Service emj^loyee employed as a 
plumber's helper by the Quartermaster's Department at Fort Bayard, 
NcAv Mexico, was a chi-onic alcoholic, and when under the influence of 
liquor was unruly and pugnacious, and was frequently absent from 
his duties; and further that he had been given a summary punish- 
ment of one month's confinement in the guardhouse, being permitted 
during the day to ])erform his regular duties as plumber's helper. 
Held^ that as he was not an inmate of the hospital at that place, but 
only a Civil Service employee therein, he did not come within the 
pr()visions of the act of June 12, 190G (34 Stat., 255), providing that 
all persons admitted to trciitment in tlie general hospital at that ])Ost 
should be subject to the i-ules and articles for the government of the 
Army of the United States, and that therefore his summary punish- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 41 

ment in the guardhouse Avas illegal, although he accepted this punish- 
ment in preference to having charges preferred against him with a 
view to his removal from the service. 
(16-230, July 15 and Aug. 8, 1912.) 



MILITARY RESERVATIONS : Erection of sectarian chapels upon reserva- 
tions. 

Upon application for a site on the military reservation at Fort 
William McKinley, P. I., upon which to erect a chapel, no mention 
being made as to whether it was to be used for sectarian or nonsec- 
tarian purposes, but the applicant belonging to the Roman Catholic 
Church. EeM,^ following the opinion of the Attorney General of 
May 8, 1897 (21 Op., 537), in the matter of the contemplated erec- 
tion of a Catholic chapel at West Point, N. Y,, that no authority 
exists in the Secretary of War to grant a license for the erection of a 
sectarian chapel upon the military reservation, but that since the pas- 
sage of the Act of May 31, 1902 (32 Stat., 282), authorizing the 
Secretary of War to permit the construction of buildings by the 
Young Men's Christian Association, a license might be given for the 
construction of a nonsectarian chapel as a place of worship for all 
denominations. 

(80-815, July 26, 1912.) 



MILITARY RESERVATIONS: Jurisdiction of the United States over, in 
New Mexico; taxation of Government agencies. 

Upon inquiry as to the legal status of the Fort Bayard Military 
Reservation in New Mexico. Held, that Avhen New Mexico was erected 
into a State of the Union no reservation was made by Congi-ess of 
exclusive jurisdiction over the military reservations situated therein, 
and it follows that the Federal reservations in that State are merely 
pieces of real estate belonging to the Government and are subject 
to the laws of the State as is real property of any other owner ex- 
cept, of course, that the State may not interfere directly or indirectly 
with the operation of the agencies of the United States. Held fur- 
ther^ that while automobiles used on the reservations by private 
parties are subject to license and taxation by the State an automo- 
bile ambulance belonging to the United States is exempt from tax- 
ation. Fort Leavenworth R. R. Co. v. Lowe (114 U. S., 525.) 

(90-125, Sept. 16, 1912.) 



MILITIA: Aids to commanders-in-chief and brigadier generals; unassigned 
list. 

Upon consideration of the question as to whether or not aids can 
be appointed to the governors as commanders-in-chief of the Organ- 
ized Militia and to brigadier generals of su.ch service conformably 
w'ith the provisions of section 3 of the Militia act of Januarv 21, 
1903 (32 Stat., 775), as amended by section 2 of the act of May 27, 
1908 (35 Stat., 339). LI eld, that aids appointed and commissioned 
for brigadier generals in the Organized Militia of the same number 
and grade as authorized by law for officers of corresponding rank 
in the Regular Army of the United States may be recognized as a 
part of the Organized Militia, and it is not required that they be 



42 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXEBAL. 

commissioned in any particular line or staff corps, bnt that no sncli 
aids appointed for the commander-in-chief of the militia may be 
so recognized as the law does not provide for aids to the commander- 
in-chief of the Arriiy of the United States. Held further^ that officers 
aj^pointed in the militia in excess of the requirements of their or- 
ganizations and not needed for staff duties in connection therewith, 
can not be recognized as part of the Organized ISIilitia. The addi- 
tional list of officers in the United States Army authorized for 
detail to various duties not directly connected vrith military adminis- 
tration, does not constitute a military organization within the 
meaning of section 3 of said act of January 21, 1903. and no such 
bodv of officers can be recognized as such as a part of the Organized 
Militia. 

(58-213, July IT, 1912.) 



MILITIA: Expense of hiring' mounts for officers for tlie purpose of partici- 
pating in joint maneuvers. 

x\ bill of $000 was incuried by the State of Missouri in the hire of 
horses foi- mounts for officers of the State Militia for the purpose of 
partici]iating in the joint ma.neuver campaign in the State of Kansas. 
Held, that the expense of hiring such mounts should be paid from the 
appropriation accruing to the State under section 1661. Revised 
Statutes, as amended by the act of June 22, 1906 (34 Stat., 449. 450), 
and not from the appropriation for '' Encampments and Maneuvers, 
Organized Militia." IS Uomp. Dec, 361. 

(58-424. Sept. 18. 1912.) 

OATHS: Authority to administer; chief clerks of executive departments and 
clerks designated by them. 

Section S of the Sundry Civil Act of August 24, 1912 (Public No. 
302), authorizes certain offi.cers and clerks to administer oaths re- 
quired by law or otherwise to accounts for travel and other expenses 
against the I'^nited States, including "Chief clerks of the various 
executive departments and bureaus, or clerks designated by them for 
the purpose." On recommendation of the Chief of Engineers that 
certain chief clerks and clerks at engineer offices and suboffices of 
the engineer de])artnient at large be designated to administer such 
oaths. Held , that the designation of a clerk in any bureau should 
be left to the chief clerk of that bureau who may designate one or 
more clerks of his bureau for this purpose in case he himself does 
Tiot administer oaths, but there is no authority for the designation of 
an unlimited number of clerks throughout the United States for that 
purpose. 

(94-420. Sept. 14. 1912.^ 



OFFICERS AND EMPLOYEES: Teacher of French in the United States 
Military Academy; oath of office. 

Section 1757, Revised Statutes, provides that when any person is 
elected or appointed to any office of honor or trust under the Govern- 
ment of the United States he sludltake an oath providing iti part as 
follows: 

"That T will support and defen<l the Constitution of the TTnited 
States against all enemies, foreign and domestic: that T will bear true 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 43 

faith and allegiance to the same: * * * and that I will well and 
faithfully discharge the duties of the office on which I am about to 
enter." 

For several years past the annual appropriation acts for the sup- 
port of the United States Military Academy have contained the fol- 
lowing item : 

" For pay of two civilian instructors in French, to be employed 
under rules prescribed by the Secretary of War, $-2,000 each, $-l:,0()0;"' 
and under this authority the Secretaiy of War has established cer- 
tain rules, and has employed French citizens as civilian instructors. 
A French citizen employed as one of such instructors, on taking the 
oath prescribed by the above section of the Revised Statutes, omitted 
therefrom the word " allegiance." HeJd^ that there is serious doubt 
as to whether or not the civilian instructor in French at the Military 
Academy holds an office as contemplated by law; but being in this 
case a foreign citizen, in view of the opinion of the Attorney General 
(23 Op. Atty. Gen. 608), even should he be holding an office, he need 
not be required to take that portion of the oath promising allegiance 
to the United States. It is therefore recommended that the oath 
taken be accepted. 

(50-111.5, Sept. 10, 1912.) 



PENALTY ENVELOPES: Use by post laundries. 

As penalty envelopes are authorized to be used when tlie matter 
mailed relates " exclusively to the business of the Government of the 
United States," they may be used, in carrying on the necessary cor- 
respondence, the mailing of price lists, laundry slips, etc., required by 
the laundry business of post laundries established pursuant to Army 
Regulations. 

(22-022, Aug. 15, 1912.) 

OFFICEKS AND EMPLOYEES: Teacher of Erench in the United States 
participation in profits. 

A regiment stationed at a post where there was a post exchange, in 
which its constituent organizations held membership, was under 
orders to go to the Philippines, and the value of the shares of the 
respective organizations was appraised by a board as of date August 
25, 1911. The board further recommended that the regimental 
organizations be paid their share of accrued profits to the date of 
their departure from the post. This recommendation was not ap- 
proved by the exchange council, and the commander concurred in 
its action. Held., that the organizations of the regiment ceased to be 
members of the exchange after August 25, 1911, and were not respon- 
sible for the debts of the exchange nor entitled to share in its profits 
after that date, and that the recommendation of the board of ap- 
praisers was simply advisory and did not deprive the exchange 
council of its authority to determine whether or not the organizations 
of the regiment should i)articipate in the profits of the exchange 
after said date. 

(40-142, Sept. 28, 1912.) 



44 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

PROMOTION: Service under prior appointment in the Medical Corps to 
entitle to promotion. 

Section 2 of the act of April 23, 1908 (35 Stat., 67), provides that 

"'' First lieutenants shall be promoted to the grade of captain after 
three years' service in the Medical Corps." 

An officer served in the Medical Corps for over two years, and then 
resigned from the service. He was afterwards reappointed and com- 
missioned a first lieutenant in the Medical Corps. Ileld^ that his 
service rendered prior to his resignation could not be counted as a 
part of the three years' service in the Medical Corps to entitle him 
to promotion to the grade of captain. 

(C. 23135-A, June 1, 1912.) 

PUBLIC PROPERTY: Chartering cf a U. S. Army transport to private 
parties. 

The local military authorities of the Philippine Islands recom- 
mended that the U. S. A. T. /Seward, which had been recommended 
for survey with a view to condemnation, be chartered, pending legis- 
lation authorizing its final disposition, to private parties who had 
offered to pay the United States $1,000 per month for its use and to 
insure the vessel against loss. Held, that in the absence of congres- 
sional sanction there is no authority for the disposal of property of 
the United States by executive agency, and that the chartering of 
an Army transport is a hiring out and a partial disposition of the 
same. Held further, that, admitting that it might be legal to charter 
the vessel to private parties, complications would then arise as to the 
navigation laws of the Islands to wdiicli the vessel would become sub- 
ject as soon as it assumed a commercial character; that the vessel 
would have to be registered, and that Avhen placed in the position of 
a commercial vessel it would become liable in certain cases to seizure 
and to fulfill many obligations involving severe penalties for their 
violation, all of vrhich Avould constitute an insuperable objection to 
chartering. 

(94-111, Aug. 2G, 1912.) 

PUBLICATIONS: Expenses of public distribution; Section 8, act of August 
23, 1912. 

Section 8 of the Legislative, Executive, and Judicial Appropria- 
tion Act of August 23, 1912 (Public No. 299), prohibits any expendi- 
ture after October 1, 1912, from appropriations contained in said act 
'' for services in any executive department * * * i^ the work of 
addressing, wrapping, mailing, or otherwise dispatching any publi- 
cation for public distribution," and provides for such distribution by 
the Government Printing Office. 

Held, that the work of distributing printed reports of bureaus and 
other publications that are needed for official use in the conduct of 
their business, or the work of mailing copies of such publications to 
members of Ccmgress and other Government officials who may apply 
for them for official use, or in replying to persons requesting informa- 
tion, do not conie witliiji tlie meaning of the act and the work of 
such distribution should not be turned over to the Government Print- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 45 

ing Office. Held further^ that the distribution by way of exchange 
for other publications of a professional or scientific character should 
not be regarded as a " public distribution " within the meaning of 
the act. 

(50-020, Sept. 23 and 24, 1912.) 



QUARTERMASTER CORPS: Organization of under the Army Appropria- 
tion Act of August 24, 1912; detail of officers to. 

The Quartermaster Corps provided for by section 3 of the Army 
Appropriation Act of August 24, 1912 (Public No. 338), came into 
legal existence on the date of the approval of the act to the extent 
that no detail to the grade of captain can be made thereto until the 
number of officers of that grade in said corps has been reduced below 
the authorized consolidated strength of 102. 

(6-224, Aug. 28, 1912.) 



QUARTERMASTER CORPS: Organization of under the Army Appropria- 
tion Act of August 24, 1912; taking effect of act. 

Section 3 of the Army Appropriation Act of August 24, 1912 
(Public No. 338), provides that the offices of the Quartermaster Gen- 
eral, the Commissary General, and the Paymaster General shall be 
consolidated into a single bureau known as the Quartermaster Corps, 
and provides further — 

" That for the purpose of carrying into effect the provisions of this 
section the President is hereby authorized to appoint, by and with 
the advice and consent of the Senate, a chief of the Quartermaster 
Corps herein provided for, immediately upon the passage of this 
Act, and it shall be the duty of the said chief, under the direction of 
the President and the Secretary of War, to put into effect the provi- 
sions of this section not less than sixty davs after the passage of this 
Act." 

Held, that such provisions of said section 3 as became operative 
without executive action went into effect immediately upon the pas- 
sage of the act and therefore that the new designation given to 
officers by the act should be used in referring to the officers of the 
consolidated corps, and that the details to the consolidated corps or 
to any of the bureaus composing it could not be made or become 
effective until the number of officers in the consolidated corps had 
been reduced to the number authorized by the law. 

Held further^ that the expression in the portion of the act above 
quoted requiring the Chief of the Quartermaster Corps to put the 
provisions of such section into effect " not less than sixty days after 
the passage " of said act, defines a period of limitation before which 
the provisions of the act requiring executive action can not be can-ied 
into effect and that therefore the advancement of not to exceed six 
captains holding commission in the Quartermaster Corps to the 
grade of major as authorized by the act, not taking effect by oper- 
ation of the law, but requiring executive action, must be postponed 
to the end of sixty-day period. 
(64-250, Sept. 3, 1912.) 



46 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXERAL. 

QUARTEEMASTER CORPS: Organization of; men enlisted to take the place 
of civilian employees. 

Section 4 of the Army Appropriation Act of August 24, 1912 
(Public No. 338), provides: 

"That as soon as practicable after tiio creation of the Quarter- 
master Corps in the Army not to exceed f«nir thousand civilian em- 
ployees of that corps, receiving a monthly compensation of not less 
than thirt}^ dollars nor more than one hundred and seventy-five 
dollars each, not including civil engineers, superintendents of con- 
struction, inspectors of clothing, clothing examiners, inspectors of 
supplies, inspectors of animals, chemists, veterinarians, freight and 
passenger rate clerks, civil service employees, and employees of the 
classified service, employees of the Army transport service and har- 
bor boat service, ancl such other employees as may be required for 
technical work, shall be replaced permanently^ by not to exceed 
an equal number of enlisted men of said corps, and all enlisted men 
of the line of the Army detailed on extra duty in the Quartermaster 
Corps or as bakers or assistant bakers shall be replaced permanently 
by not to exceed two thousand enlisted men of said corps; and for 
the purposes of this Act the enlistment in the military service of 
not to exceed six thousand men, who shall l^e attached permanently 
to the Quartermaster Corps and who shall not be counted as a part 
of the enlisted force provided by law, is hereby authorized: Pro- 
vided^ That the enlisted force of the Quartermaster Corps shall con- 
sist of not to exceed fifteen master electricians, six hundred ser- 
geants (first class), one thousand and five sergeants, six hundred 
and fifty corporals, two thousand five hundred privates (first class), 
one thousancl one hundred and ninety privates, and forty-five cooks, 
all of whom shall receive the same pay and allowances as enlisted 
men of corresponding grades in the Signal Corps of the Army, and 
shall be assigned to such duties pertaining to the Quartermaster 
Corps as the Secretary of War may prescril)e: Provhlod further. 
That the Secretar}' of War may fix the limits of age within which 
civilian employees who are actually employed by the Government 
when this Act takes effect and who aie to be replaced by enlisted 
men under the terms of this Act may enlist in the Quartermaster 
Corps: Provkled further^ That nothing in this section shall be held 
or construed so as to prevent the employment of the class of civilian 
employees excepted from the provisions of this Act or the continued 
employment of civilians Included in the Act until such latter em- 
ployees have been replaced by enlisted men of the Quartermaster 
Corps/' 

Held, that the portion of said section describing the cla?^ses of em- 
ployees not included within the provisions of that portion of the act 
re<|uiring the substitution of civilian emjiloyees in the Quartermaster 
Corjis by enlisted men, refers to the persons and not to the positions 
held by them, and that as said positions are vacated they may be 
filled by the enlisted men authorized by said act; held fin'fher, that 
under the authority of the proviso to the effect that nothing in said 
section shall be held or construed so as to prevent the employment 
of the classes of civilian employees excepted from the provisions of 
the a'^'t, the Secretary of War may properly direct that, as to the em- 
ployees required for techuical worlc of the classes specified, vacancies 
occurring may be filled in the future as in the past through the Civil 



DIGEST OF OriNIONS OF THE JUDGE ADVOCATE GEXERAL. 47 

Service, and in this way full operation can be gi\en to the entire sec- 
tion authorizing the enlistment of men for the purpose of taking the 
j)lace of civilian employees. 
(0-i>24, Sept. 14, 191'2.) 



RETIREMENT: Enlisted meu; counting' time spent in confinement on 
account of desertion. 

The act of March i>, 1907 (34 Stat., 1217) provides that 

'' When an enlisted man shall have served 30 years either in the 
Army, Navy, or Marine Corps, or in all, he shall, upon making ap- 
plication to the President, be placed upon the retired list." 

A soldier deserted and was apprehended February 21, 1904, and 
I'estored to duty without trial March 6, 1904. Held, that the man 
was in the service from his apprehension to the date of his restora- 
tion to duty without trial, and that such time should be counted in 
computing the 30 years service to entitle him to retirement. 

(88-800, July 26, 1912.) 



RETIREMENT: Paymasters' clerks in the Army; assig'nment to active 
service. 

Upon application of the Paymaster General for the assignment of 
a retired paymaster's clerk to active service for staff duties in the 
office of the Paymaster General. Held, that the act of April 23, 
1904 (33 Stat., 264), authorizing the assignment of retired officers 
of the Army to active duty in certain cases, has reference solely to 
commissioned officers of the Army so retired, and as army pay- 
masters' clerks are not such commissioned officers, and as there is 
no statute specifically authorizing their assignment to active duty 
after retirement an army paymaster's clerk, retired, can not be as- 
signed to such active duty. 

■"(88-700, Aug. 17, 1912.) 



TRANSPORTATION : Use of U. S. A. T. " Buford " in rescuing American 
refugees in Mexico. 

At the request of the Secretar}' of State and upon the order of the 
President, the Secretary of War sent the U. S. A. T. Buford on a 
voyage along the west coast of Mexico for the purpose of obtaining 
information as to conditions affecting American interests in that 
country and to furnish relief to American citizens and transport 
such of them to their homes as desired to lea^'e the country. This 
occurred at a time of great political disturbance in Mexico and when 
portions of the Army were being assembled on the Mexican border 
in view of such disturbance. Held, that the expedition, although 
undertaken at the request of the State Department, was ordered by 
the President and might have been undertaken by the War Depart- 
ment itself and was germane to the purposes for which the Army 
had been used on the Mexican border, and that the expenses incurred 
therefor might properly be paid from War Department appropria- 
tions. 

(1)4-U0, July 17, 1912.) 



48 DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GEXEEAL. 

DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the oflice of the Jtnlgre Advocate (leneral.) 

COMMUTATION" OF QUARTERS: Temporary absence from permanent 
station. 

An officer ^vas temporarily absent from his permanent station, 
where he still retained his quarters, on duty in connection with an 
investigation of the Philadelphia Depot, Quartermaster's Depart- 
ment, and while so engaged stopped for various periods at Philadel- 
phia, Pa., and Washington, D. C, where he was not furnished quar- 
ters. On the question of his right to commutation of quarters at 
the places of temporary duty. Helcl^ that while attached to a station 
and in receipt of quarters thereat the officer could not at the same 
time claim commutation of quarters at his post of temporary ([\\iy. 

(Asst. Compt. L. P. Mitchell, Aug. 12, 1912.) 



EMPLOYEES: Payment cf, from lump-sum appropriations. Acts of August 
23 and 26, 1912. 

Section 7 of the General Deficiencv Act of August 26, 1912 (Public 
No. 340), provides: 

" No part of any money contained herein or hereafter appropriated 
in lump sum shall be available for the paj^ment of personal services 
at a rate of compensation in excess of that paid for the same or 
similar services during the fiscal year nineteen hundred and twelve ; 
nor shall any person employed at a specific salary be hereafter trans- 
ferred and hereafter paid from a lump-sum appropriation a rate 
of compensation greater than such specific salary, and the heads of 
departments shall cause this provision to be enforced.'' 

Section 3 of the Legislative, Executive, and Judicial Act of August 
23, 1012 (Public, No. 299), contains a similar provision except that 
the lump-sum appropriations effected by the first portion of said pro- 
A ision are only those mentioned in the act. Eespecting the provision 
that no money appropriated by said act shall be available for the pay- 
ment for personal services at a rate of compensation in excess of that 
paid for the same or similar services during the fiscal year 1912. 
Ilcld^ that this does not mean that individual employees may not be 
promoted and paid increased compensation, provided that the new 
rate does not exceed the rate paid for the same or similar services 
during the year 1012. Assuming that the different places are classi- 
fied to suit the varying degrees of experience and efficiency, there is 
nothing to prohibit the promotion of an employee from one class to 
another at an increased compensation. Held further, that an em- 
ployee holding a statutory position in the Department of the Interior, 
or in any other department, if otherwise eligible, can not be trans- 
ferred to another bureau in said department and paid from a lump- 
sum appropriation at an increased compensation; nor can such em- 
ployee be so transferred at a salary not in excess of that received by 
him in the department or bureau from which transfei-red and pro- 
moted to a higher salary and paid from such lump-sum appropri- 
ation. 

(Compt. R. J. Tracewell, Sept. 5 and 9, 1912.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 49 

ENLISTMENT: Three months' reenlistment pay on discharge as corporal 
and reenlistment. 

The act of May 11, 1908 (35 Stat., 110), provides that "any private 
sohlier, musician, or trumpeter honorably discharged " shall be en- 
titled to three months' pay on reeinlistment within a certain period. 
Section 31 of the act of February 2, 1901 (31 Stat, 756), provides 
for detaching a certain number of enlisted men for recruiting service 
and provides that while performing such duty one member of the 
party shall have the rank, pay, and allowances of sergeant, and 
another the rank, pay, and allowances of corporal. A private 
soldier in the general service so detailed on a recruiting party and 
given the rank, pay, and allowances of corporal was honorably dis- 
charged while performing such duty and reenlisted within the stat- 
utory period to entitle him to three months' reenlistment pay. Ileld^ 
that the act relating to the detail of enlisted men for recruiting serv- 
ice was not intended to increase the number of sergeants and cor- 
porals in the Army, and that the soldier was a " private soldier " 
within the meaning of the law at the time of his discharge, and upon 
his reenlistment became entitled to reenlistment pay. 

(Asst. Compt. L. P. Mitchell, Aug. 29, 1912.) 



FORAGE: Issue of, to military attaches for horses kept as authorized 
mounts but not owned by them. 

A military attache serving abroad purchased for himself forage 
for the use of a horse hired and kept by him as his authorized mount, 
but not owned by him. 

Section 1272, Revised Statutes, provides: 

" Forage shall be allowed to officers only for horses authorized by 
law, and actually kept by them in service when on duty and at the 
place where they are on duty." 

Section 8 of the act of June 18, 1878 (20 Stat, 150), provides: 

" Forage in kind may be furnished to the officers of the Army, by 
the Quartermaster's Department, only for horses owned and actu- 
ally kept by such officers in the performance of their official military 
duties when on duty with troops in the field or at such military posts 
west of the Mississippi River as may be from time to time designated 
by the Secretary of War, and not otherwise, as follows ; * * * " 

The act of February 24, 1881 (21 Stat., 347), provides: 

" That there shall be no discrimination in the issue of forage 
against officers serving east of the Mississippi River, provided they 
are required by law to be mounted, and actually keep and own their 
own animals." 

Held., that under the provisions of the laws quoted forage can be 
allowed to officers of the Army only for the authorized number of 
horses which are actually owned and kept by them at the place 
where they are on duty, and that the amounts expended for forage 
in this case should be disallowed. 

(Asst. Compt. L. P. Mitchell, July 12, 1912.) 

93668°— 17 4 



50 DIGEST OF OPIN^IONS OF THE JUDGE ADVOCATE GENERAL. 

INDIAN SCHOOLS: Retired Army officers acting as superintendents; office. 

The act of March 1, 1907 (34 Stat., 1020), provides that— 

" The Commisisoner of Indian Affairs, with the approval of tlio 
Secretary of the Interior, may devolve the duties of any Indian 
agency or part thereof upon the superintendent of the Indian school 
located at such airency or part thereof wlienever in his judgment 
such superintendent can properly perform the duties of such agency. 
And tlie superintendent upon wliom said duties devolve shall give 
bond as other Indian agents." 

The duties of an Indian agent are defined by statute (sec. 2058, 
Rev. Stat.; Romero v. U. fS., 24 Ct. CL, 331), and their salary and 
term of office are fixed by law (sees. 2055 and 2056, Rev. Stat.). The 
salary of a superintendent performing agency duties is fixed not to 
exceed $300 more than he would have received as superintendent not 
jjerforming such duties (act of March 1, 1907, supra). 

Held, that the superintendent of an Indian school performing tlie 
duties of an Indian agency is holding an office to which compensa- 
tion is attached within the prohibition of the act of July 31, 1894 
(28 Stat., 205), and a retired officer of the Army whose compensa- 
tion amounts to $2,500 or more is proliibited from holding such posi- 
tion. 

(Compt. R. J. Trace well. Sept. 7. 1912.) 



TELEPHONE SERVICE: Payment for in buildings owned by the Govern- 
ment and used as private residences. 

Section 7 of the Legislative, Executive, and Jiidiciai Appropria- 
tion Act of August 23, 1912 (Public, No. 299), provides: 

'• That no money appropriated by this or any other act shall be 
expended for telephone service installed in any private residence or 
private apartment, or for tolls or other charges for telephone serv- 
ice from private residences or private apartments, except for long- 
distance telephone tolls required strictly for public business. '•' '•' ''" 

Held, that the buildings assigned as residences to the superintend- 
ent and to the medical director of tlie Hot Springs Reservation situ- 
ated on the reservation and belonging to the Government, notwith- 
standing they are public property, are, when turned over for the 
private personal use of Government officials, none the less private 
residences within the meaning of said act, and thai: telephone serv- 
ice therein should not be paid for from public funds. 

(Compt. R. J. Tracewell, Sept. 25, 1912.) 



TRANSPORT SERVICE: Quarters or commutation thereof for an officer 
of the Army while temporarily performing duty thereon. 

Held, that an officer of the Army regularly a-signed to ;>. station at 
a home port and who is ordered to make a trip on an Army transport 
and to perform duty thereon during the voyage, is temporarily 
absent from his station on duty and is entitled to <iuarters or com- 
mutation at his permanent station. 

(Asst. Compt. L. P. Mitchell. Aug. 19, 1912.) 

Otherwise if his orders are such as to practically assign lum to 
station on tlie shij). 

(Asst. Compt. L. P. Mitchell, July 5, 1912.) 



DIGEST OF OPIXIONS OF THE JUDGE ADVOCATE GENEEAL. 51 

WAR DEPAHTMENT: Filling clerical positions therein; act of August 23, 
1912. 

The Lei>islative, Execiiti>e. and Judicial Appropriation Act of 
August ^o'TlOl^ (Public No. 21)9, p. 29), provides that 

'' During the fiscal year 1913 no \'acancy occiuring in tlie chissified 
service of the War Department herein provided for shall be tilled 
except by promotion or demotion from among those within said 
service, until the whole number of those herein authorized in said 
classified service of the Depaitment shall have been reduced not less 
than five per centum.'' 

On application for a construction of this provision b}' the Secre- 
tary of War. Ileld^ 1. That the places in the classified service pro- 
vided for in said act in the Signal Office, Office of the Chief of Ord- 
nance, Office of the Chief of Engineers, and in the Division of 
Militia Affairs, to be paid from appropriations for special purposes 
not carried in said act, are a part of the departmental establishment 
at Washington and come within the provision quoted abcive; 2, That 
the intent of the statute appears to be that during the fiscal year 191o 
no vacancies shall be filled except in accordance with its provisions 
and that therefore vacancies existing at the time the act Avent into 
effect should not be filled except as therein provided: 3. That all 
vacancies occurring during the fiscal year 1913 in the classified serv- 
ice of the War Department until the five per cent reduction has been 
accomplished must be filled from among those Avithin said service 
and can not be filled by promotion or demotion of employees from 
the field service and their transfer to the bureaus in Washington, as 
the act relates exclusively to the classified service in the departmental 
establishment at the seat of government. 

(Compt. E. J. Tracewell, Aug. 28. 1912, reaffirmed on rehearing 
Sept. T, 1912.) 

OPINIONS OF THE ATTOENEY GENERAL. 

(Digests pi-eparetl iu the ottiee of tlip .Judge Advocate General.) 

EIGHT-HOUR LAW: Employment of laborers and mechanics in making 
repairs to Government vessels. 

The act of August 1, 1892 (27 Stat., 310), limits and restricts the 
service and employment of all laborers and mechanics who may be 
employed by any contractor or subcontractor " upon anj^ of the public 
works of the United States " to eight hours in any one calendar day. 
Upon request for an opinion as to whether said law is applicable to 
contracts for repairs to certain vessels owned by the Government. 
Held, that the employment of laborers and mechanics in making- 
repairs to Government vessels is employment upon a public work of 
the I'^nited States, and is therefore subject to the restrictions of the 
eight-hour law of xlugust 1, 189*2. 

(29 Op. Atty. Gen.. ,395. May 10. 1912.) 



EIGHT-HOUR LAW: Purchase of ammunition. 

The Fortification Act of June G. 1912 (Public Xo. 183), contains 
the proviso that — 

" Except in time of war or when, in the judgment of the President, 
war is imminent, no part of this or of any other sum in this act for 



52 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

aniniimition shall be expended for the purchase of any ammunition 
from any person, fimi, or corporation which has not at the time of 
commencement of said work established an eight-hour w^orkday for 
all employees, laborers, and mechanics engaged or to be engaged in 
the work of manufacturing the ammunition named herein." 

Upon submission of certain questions based upon said proviso. 
Held, that the requirement of the law that a contractor for ammuni- 
tion shall have established an eight-hour workday for all of his 
employees engaged upon the work under contract is to be construed 
as prohibiting his working such employees more than eight hours a 
day. Held furtlwr, that the eight-hour workday restriction of this 
proviso does not apply to purchases of ammunition made abroad. 

(29 Op. Atty. Gen., 488, July 1, 1912.) 



EIGHT-HOUR LAW: Act of June 19, 1912; contract for Government 
supplies. 

Section 1 of the act of June 19, 1912 (Public No. 199) , requires that 
all Government contracts shall contain a provision that the con- 
tractor shall not permit any of the laborers or employees engaged 
under the same to work more than eight hours in any one calendar 
day, W'ith a penalty prescribed to be enforced in case of violation. 
Section 2 of the act excepts from the provisions of section 1 certain 
contracts, among others, contracts for the purchase of Govei^nment 
supplies with the proviso that the act shall nevertheless apply to all 
contracts for manufacture of supplies which the Government " has 
been, is now, or may hereafter " engage in manufacturing. Held, 
that the words quoted are intended only to limit the Government 
officers so that Avhen the Government shall be engaged generally in 
the manufacture of supplies or in work where the eight-hour law 
applies, they can not practically evade the provisions of the law by 
turning over Such manufacture to contractors, but that under such 
conditions the contract for supplies must be performed under the 
restrictions of the law and that it is immaterial whether the mate- 
rial is supplied by the Government or not. Subject to this excep- 
tion the act does not apply to the purchase or manufacture of sup- 
plies. Held further, that under the provisions of section 3 of said 
act which provides that the same shall not go into effect until Janu- 
ary 1, 1913, the recjuirements of said act do not apply to contracts 
entered into before that time, although they may extend beyond said 
date. 

(Op. Atty. Gen., Aug. 19, 1912.) 



BETIREMENT: Retired officers of the Army and Marine Corps; acting- as 
agents in the prosecution of claims against the Government. 

Section 1782, Revised Statutes, provides^ 

" No Senator, Representative, or Delegate, after his election and 
during his continuance in office, and no head of a Department, or 
other officer or cleik in the employ of the Government, shall receive 
or agree to receive any compensation whatever, directly oi' indirectly, 
for any services rendered, or to be rendered, to any person, either 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 53 

by himself or another, in relation to any proceedino;, contract, claim, 
controversy, charge, accusation, arrest, or other matter or thing in 
which the United States is a party, or directly or indirectly inter- 
ested, before any Department, court-martial. Bureau, officer, or any- 
civil, military, or naval commission whatever. * * * " 

The portion of the section not quoted prescribes penalties against 
those violating the preceding portion of said section. 

On application for opinion as to the status of a retired officer of 
the Marine Corps with relation to said section. Held^ that an officer 
of the United States Army or of the Marine Corps, retired from ac- 
tive service, and not wholly retired, is an officer in the employment 
of the Government and is within the prohibition of said section of 
the Revised Statutes. 

(29 Op. Atty. Gen. 397, May 17, 1912.) 



RETIREMENT: Retired naval officer holding appointment under the Civil 
Service Commission; two offices. 

Section 2 of the act of July 31, 1894 (28 Stat., 205), provides that 
no person who holds an office under the United States, the salary or 
annual compensation attached to which amounts to $2,500 or more, 
shall be appointed to or hold any other office to which compensation 
is attached, with certain exceptions, without special legislative au- 
thority. Ileld^ that a commander of the United States Navy, re- 
tired, holds an office wdth a salary or compensation attached within 
the meaning of the above enactment, and as he is in receipt of a salary 
as such retired officer amounting to $2,500 per annum, he can not be 
appointed a clerk of Class III under the Civil Service Commission, 
that position being also an office within the meaning of said statute 
with compensation attached {United States v. Hartioell^ 6 Wall., 
385). 

(Op. Atty. Gen., Aug. 12, 1912.) 



BULLETIN 22. 

Bulletin 1 Y/AS DEPARTMENT, 

No. 22. j Washington, November 21^ 1912. 

The followlnof opinions of the Judg^e Advocate General, having 

special reference to the Army appropriation act of August 24, 1912 

(37 Stat.. 569-594), are puhiished for the inforraatiun of the service 

in general. 

[1974650, A. G. 0.] 

By order or the Secretary or War : 

LEONARD Yv^OOD, 
Major General^ Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Adjufanf Genrral. 



OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

[First indorsement.] 

\Yar Department, 
JuDOE Advocate General's Office, 

September 16, 1912. 
To the Chief of Staff. 

I have had under consideration your memorandum of the 9th 
instant, requesting the opinion of this office on certain questions aris- 
ing in the administration of the following provisions of the act of 
Congress of August 24, 1912, and of the joint resolution of Congress 
of the same date respecting the detached service of officers of the 
Army : 

" Provided . That hereafter in time of peace v\'henever any officer 
holding a permanent commission in the line of the Army with rank 
below that of major shall not have been actually present for duty 
for at least two of the last preceding six years v/ith a troop, battery, 
or company of that branch of the Army in which he shall hold said 
commission, such officer shall not be detached nor permitted to re- 
main detached from such troop, battery, or company for duty of 
any kind; and all pay and allowances shall be forfeited by any 
superior for any period during Avhich, by his order or his permis- 
sion or by reason of his failure or neglect to issue or cause to be 
issued the proper order or instructions at the ])roper time, any officer 
shall be detached or permitted to remain detached in violation of 
any of the terms of this proviso; but nothing in this proviso shall 
be held to apply in the case of any officer for such period as shall be 
actually necessary for him, after having been relieved from detached 
54 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 55 

service, to join the troop, battery, or company to v."hicli he shall be- 
long in that branch in v,hich he shall hold a permanent commission, 
nor shall anything in this proviso l)e held to apply to the detachment 
or detail of officers for duty in the Judge Advocate General's De- 
partment or in the Ordnance Department or in connection Avith the 
construction of the Panama Canal until after such canal shall have 
been formally opened, or in the Philippine Constabulary until the 
first day of January, nineteen hundred and fourteen, or to any officer 
detailed, or who may be hereafter detailed, for aviation duty. And 
hereafter no officer holding a permanent commission in the Army 
with rank below that of major shall be detailed as assistant to the 
Chief of the Bureau of Insular Affairs with rank of colonel, or as 
commanding offi.cer of the Porto Rico Regiment of Infantry, or as 
chief or assistant chief (director or assistant director) of the Philip- 
pine Constabulary, and no other officers of the Army shall hereafter 
be detailed for duty with the said constabularv except as specifically 
provided by law.'' (Act of Aug. 24, 191-2.) 

''"Resolved hif the Senate and House of Representatives of the 
United States of America, in Congress assemhled^ That in the 'act 
making appropriation for the support of the Army for the fiscal 
year ending June thirtieth, nineteen hundred and thirteen, and for 
other purposes,' there be substituted for the word ' hereafter " where 
it first occurs in the first proviso under the heading, ' Pay of officers 
of the line,' the words ' on and after December fifteenth, nineteen 
hundred and twelve.' " (Joint resolution of Congress, August 24, 
1912.) 

I understand your inquiries to be as follows: 

1. Does the date fixed in the joint resolution, viz, December 15, 
1912, mark the date on which the penalty clause of the proviso will 
commence to apply, so that all changes in stations of officers must 
be accomplished on or before that date, or is a reasonable time given 
after that date to accom]5lish such change? 

2. Is the language of the proviso, "actually present for duty for 
at least two of the last preceding six years with the troop, battery, 
or company of that branch of the Army in which he shall hold said 
conmiission,'" to be interpreted literally as meaning that an officer 
must be actually present on duty with a troop, battery, or company, 
or can it be fairly interpreted as meaning that he must be present 
and available for duty with a troop, battery, or company? 

More specifically, and included within the scope of this inquiry, 
you ask : 

3. Is an officer to be considered as actually present for duty with 
a troop, battery, or company, or detached therefrom, within the 
sense of the proviso, when ordered to the following descriptions of 
duty: To another post to take examination for promotion; to the 
Philippine Islands, even if he is due to be transferred on account 
of foreign service ; on court-martial duty at another post as member, 
witness, judge advocate, or counsel; to make the annual militia in- 
spections; for militia duty at camps of instruction; for dut}' as 
umpire or observer at maneu\ers; as range officer or 'competitor at 
competitions: for reconnoissance or map work: to supervise elec- 
tions: as member of any board or commission at a post other than 
his own; to conduct prisoners; for duty as regimental or battalion 



56 DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENERAL. 

staff officer; for duty as post adjutant, quartermaster, commissary, 
range officer, prison officer, post-excliange officer, engineer, ordnance, 
signal, or police officer; as witness before a civil court; foi- duty with 
a machine-gun platoon or regimental detachment; on duty relieving 
flood and earthfiuake sufferers; sick in quarters or in hospital at his 
post or elsewhere ; or in quarantine at a station where his company 
is on duty; or as Artillery district staff' officer serving at a post where 
Coast Artillery companies are stationed, but performing no company 
duty; or detached from his organization in command of poi-tion of 
a troop, battery, or company? 

4. What application dees the proviso have to an officer in the 
status of arrest, or undergoing trial, or changing station from one 
company assignment to another, or awaiting orders? 

The legislation here pi-esented for construction is the latest of a 
long series of attempts to regulate the evil of excessive detached 
service of officers and the first attempt at statutory regulation of 
detached service within the military establishment. Its proper con- 
struction can, it is thought, be reached best by considering previous 
attempts at departmental regulation and the long line of official 
recommendations on the subject, in the light of which it has to be 
presumed Congress has legislated. 

The provisions of paragraphs 4, 5, G, and 7 of the Army Regida- 
tions of 18?>5 appear to be the first attempt at departmental regula- 
tion of this evil. In effect they prohibited the detachment of officers 
for duty in any staff department or on any detached service for a 
longer period than two years, but provided that they might be re- 
lieved earlier, according to circumstances, except at the Military 
Academy or in the Ordnance Department, where they might con- 
tinue detached for a pei'iod not to exceed four years. It was pro- 
Aided that this rule should not apply to aides-de-camp, nor to the 
commandant of the Corps of Cadets and officers of engineers detailed 
for duty at the Military Academy. 

The 1857 regulations dealt with detachments from company, 
regiment, or corps for duty in the staff departments or other .sitti^ 
ation, and provided that no officer (aides-de-camp excepted) should 
remain so detached longer than four years, but carried the further 
restriction that an officer of the mounted corps should not be sepa- 
rated from his regiment except for duty connected with his particu- 
lar arm. No change was made in the succeeding three editions of 
the Army Regulations (1861, 1863, and 1881), nor until 1885. when 
the regulation respecting detached service was amended by G. O. 
No. 85 of that year, so as to incorporate the provision "nor shall 
any officer so remain detached longer than four years, urdess assigned 
to speei/d duty hy tlie War De/>artm/mt. 

Army Regulations of 1889 preserved this latter provision, but the 
regulation respecting detached service was subsequently amended by 
G. O. No. 52, A. G. O., 1890, so as to require that when an officer 
not assigned to special duty by the War Department shall have 
been away for four years his detail shall cease and he wild apply in 
due season in advanee for orders to j'ejo-'m his proper corrhmand. 
This refjuirement was preserved in Army Regulations of 1895 and 
1901. In the Army Regulations of 1904 the regulation took on a 
new foi-m, with some of the verbiage of the law we are now consider- 
ing, reading in relevant })ortion as follows: 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 57 

"40. * * * When at any time an officer has served less than 
two of the preceding six years with his corps or arm of the service 
he will be ordered to join said corps or arm of the service, unless on 
detached service which, under the law. can not be so terminated. 
Exceptions to this rule will not be made except in case of emergencies 
or in time of war." 

The aljove-quoted paragraph is re]:)eated in identical words in 
paragraph 40 of the Army Regulations of 1908 and 1910. Since 
January 23, 1907, the regulation has been supplemented by Cir- 
cular Xo. 3 of the War Department, issued on that date, providing 
as follows: 

'' Hereafter an officer who has been detached from his proper corps 
or arm of the serA'ice for a period approximating four years, inchided 
in the preceding period of six years, will be deemed ineligible for 
further detail or detached duty which would normally prolong his 
absence from his proper corps or arm beyond the period contem- 
plated b}' paragrai>h 40 of the regulations, and no captain of the line 
of the Army will be detached from duty with his proper arm, 
except for such duty as legally pertains to the grade of captain, 
without the specific approval of the Secretary of War." 

P'inally, we have the regulation on this subject restated in 
" Changes of Army Regulations. Xo. 8," dated July 10, 1912. amend- 
ing paragrai)h 40. to read as follows: 

"40. In time of peace no officer below^ the grade of lieutenant 
colonel shall be detached nor permitted to remain -detached from 
that bj-anch of the Army in which he holds a commission or from 
the organization, if any, to which he shall have been assigned in said 
branch by competent authority for more than four years in any 
period of six years. Temporary duty in connection with rifle or 
]»istol competitions, with courts-mai-itial or military boards, or as 
umpire at maneuvers, not aggregating more than two months in any 
one year, performed while not regularly on detached service, leaves 
of absence on full pay taken while not regulai-ly on detached service, 
and duty as a student officer at a service school, shall not be deemed 
detached service within the meaning of this paragraph, but upon 
completion of a tour of duty as student at a service school officers 
will be returned to their respective regiments, organizations, corps, 
or departments, and will not be detached therefrom for two years 
thereafter unless such detachment be authorized or directed by the 
Secretary of War. This pai-agraph shall not be construed so as to 
impose restrictions beyond those imposed by statute upon the detail 
or redetail of f)fficers to the staff coi'ps or departments oi' the Genei'al 
Staff Corps." 

This latest regulation was promulgated while the legislation we 
are here considering was pending enactment and represented the 
furthest limit the department deemed it practicable to go in limiting 
detaclied service of officers. 

At no time has the depaitment attained even a fair measure of 
success under any of the regulations quoted above either in main- 
taining troops, batteries, and companies with an adequate commis- 
sioned personnel, or in distributing throughout the entire body of 
officers and in equal proportions the privilege of detached service. 
This fact is fully established by the records of the department and 
by the admission of superior commanders in official reports. The 



58 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXESAL. 

reason is not far to seek. Many statutes have been passed during 
the period here in reference authorizing details of officers to duties 
more or less remotely connected with their military duties, and. in- 
cidentally, it may be remarked, more appropriate for performance 
by officers of company than of field grades. The department has 
thus had to deal with an ever-increasing demand for the detail of 
offi.cers away from their duties proper and with many requests 
emanating from sources outside the service for the detail of par- 
ticular officers. The importance of detached duty to be performed 
generally required that these places should be filled vvitli a superior 
class of officers. As remarked by the Chief of Staff, in a memoran- 
dum submitted to the Secretary of War November 26, 1907, " Nearly 
all detached service calls for the most experienced officers and even 
those adjudged the most capable." Due to considerations of this 
character, selection for these duties, as well as for numerous mili- 
tary duties for which it is necessary to detach officers, came to be 
regarded as a reward for the most deserving officers. 

It is not strange that under conditions like these there was a 
failure to achieve the desired results under any of the regulations 
adopted, nor that the Chief of Staff in a letter to the President, 
dated April 11, 1908, should have remarked, with reference to the 
execution given to paragraph 40, Army Regulations of 1908, and 
Circular No. 3 of the War Department, of January 27, 1907, cited, 
supra, "It (detached service) is a most difficult question to deal 
with, and I hardly believe there is any way of preventing a viola- 
tion of the abo\'e regulation and circular."' 

The Qx\\ of absenteeism increased from year to year despite the 
earnest effort of the department, extending over quite a prolonged 
period, to regulate and control it. The extent of the evil was brought 
forcefully to the attention of Congress in the hearing before the 
Committee on Military Affairs of the House of Representatives held 
January 28, 1909, the committee having under consideration S. 2671, 
providing for extra officers. In the printed report of that hearing 
there are included the reports of all the regimental commanders 
of Cavalry, Field Artillery, and Infantry, and of the Chief of 
Coast Artillery, respecting the evil of al)senteei:-m of officers as 
conditions stood on July 31, 190S. The most prominent complaint 
elicited was that too many officers were absent from troops, bat- 
teries, and companies, and it was strongly emphasized that serious 
detriment to the discipline of the men and the efficiency of the 
service resulted therefrom, as the following extracts from said re- 
ports show : 

Col. E. J. McClernand, First Cavalry, says: 

"1. The duties of the captains who are absent (six in this case) 
fall to younger and less experienced men than the law contemplates, 
to the detriment of discipline and instruction. Such absence is also 
a frequent source of discontent on the i)art of the enlisted men. 

" 2. The decreased strength of the commissioned personnel present 
for duty has resulted in the frequent change of troop commanders 
to meet unforeseen details and necessities. This interferes with 
troop administration and is unfair to the officer and enlisted man." 
(P. 41.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 59 

Col. J. H. Dorst, Third Cavalry, says: 

'• It will be noticed that all ti't)ops but one were commanded by 
lieutenants — 5 of them yecond lieutenants — and that of the 22 offi- 
cers present 16 were lieutenants. The officers are habitually iiisuiii- 
cieiit in number to do all their required work well. Necessarily 
many things are slurred. Many delays, omissions, and errors are 
o\erlooked or condoned because it is known that the officers have 
not the time to give the matters in question their personal attention 
without neglecting something else, and can not justly be held respon- 
sible for Avhat seem to be neglects. A low standard inexitably be- 
comes established b}^ and by, and is accepted as the correct standard 
by the younger officers." (P. ^3.) 

Col. F. K. Ward, Seventh Cavalry, saysr 

^' It is impossible, with so many officers absent, to put the regiment 
in the condition it should be as regards efficiency. The discipline 
and instruction, in fact everything that contributes to efficiency, 
is unavoidably ati'ected injuriousl}'. Many troops have but one offi- 
ce!' present, and one is not enough for thorough instruction. Fie- 
quent changes of troop commanders are unavoidable. Much of the 
instruction has to be by officers temporarily attached, because the 
one officer present is on other duty. The statement can not be made 
too emphatic that discipline, instruction, contentment of the enlisted 
men, in fact e\'erything which contributes to eiliciency, is now 
injuriously affected by the absentee list." (P. -IT.) 

Col. George A. Dodd, Twelfth Cavalry, says: 

'' Some of the eifects of absenteeism and frequent changes of or- 
ganization commanders are: 

" First. A spirit of discontent on the part of enlisted men and a 
dislike on their part of being conunanded by officers entirely inex- 
perienced in the practical performance of military duties. Each 
captain, or troop commander, if he is with his troop long enough, 
should have a system of his own so far as the internal management 
of his troop is concerned — an official individuality or equation which 
is imparted not only to the soldiers but to officeis under him. It is 
that which holds an organization together, imparting to it an indi- 
vidual pride which is essential to good results. The numerous and 
frequent changes of troop commanding officers, as indicated beloAv, 
destroys all this, thereby weakening discipline. Old soldiers have 
been known to openly declare on being discharged that they would 
reenlist were it possible to know who they were to server under." 
(P. 52.) 

Brig. Gen. Arthur Murray, Chief of Coast Artillery, says : 

•"A mortar or gun battery or a mine field absolutely lequires a cer- 
tain number of officers for its proper service. These officers can not 
be dispensed with without a drop in efficiency". Their duties can not 
be doubled up and performed by a less number of indiA'iduals, no 
matter how proficient the latter may be. Their several stations are 
separated, and the duties pertaining to each position are all that one 
man can attend to at the time. 

:!; :;: ^ >;: >;: >;: :}: 

" Every effort has been made to decrease the number of officers of 
Coast Artillery detached from companies. Start' positions have 
been doubled up, leases of absence have been cut down or refused, 



60 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

but in spite of these efforts the excessive shortage remains to-day an 
active source of harm, sapping the efficiency of the corps and the 
proper service of the coast defenses of the country." (P. 62.) 

CoL WilHam II. C. Bowen, Twelfth Infantry, says: 

"Could officers (particularly captains) be assigned to duty with 
companies with any probability of remaining sufficiently long to be- 
come thoroughly identified with the organization, much better results 
would be obtained, and discipline, esprit de corps, and zeal would not 
be absolutely impossible as it is at present. 

''There is no doubt in my mind but that a large, very large, per- 
centage of desertions in the Army is caused by the constant changing 
of company officers, especially company commanders." (P. 75.) 

Col. R. H, R. Loughborough, Thirteenth Infantry, says: 

" This is no unusual condition. When the regiment left the Phil-, 
ippine Islands in September, 1907, there were only 20 officers on 
cUity with it. 

" The absence of so many officers is extremely demoralizing, and 
necessitates the constant change of officers from one company to 
another. The change of a company commander is bad enough, but 
when officers from one company are constantly being placed in com- 
rnnad of companies with which they have never served, the effect on 
both the officer and the enlisted men is to cause a lack of interest, each 
expecting a further change and none feeling that the conditions are 
permanent. If a lieutenant on duty w^ith a company were to succeed 
to its command upon the departure of the captain, the effect would 
be bad, but incomparable with the demoralizing effect of placing in 
command a lieutenant from another company or even battalion who 
knoAvs nothing of the company or the policy of its captain." (P. 76.) 

Col. C. A. Williams, Twenty-first Infnatry, says: 

"Every detail for courts, boards, detached service for brief pe- 
1 iods, officers of the day and guard, absence on leave, sick, etc., mate- 
rially interferes with that even conduct of affairs w^hich is contem- 
plated by law providing three officers for each company, which law 
its makers believed necessary to the administration of affairs of the 
organizations for which they were provided. 

" The recent experience in the Twenty-first Infantry amply illus- 
trates and demonstrates the soundness of the views here advanced. 
Nine companies participated in the march from Fort Logan, Colo., 
to the maneuver camp at Crow Creek Reservation. During this 
march of over 200 miles, the most important work of the year, not a 
captain was with these comj^anies, and but one lieutenant with each." 
(P. 84.) 

To continue these quotations would serve only to show unanimity 
of opinion upon the part of regimental commanders. Collectively 
their reports show that absenteeism from troops, batteries, and com- 
panies was primarily in view as the most radical evil to be remedied, 
although many of them refer to embarrassments incident to absence 
of officers of field grade. To the same effect are the reports of depart- 
ment commanders, through whom the reports of regimental com- 
mandei's were forwarded, as illustrated by the following comments: 

Gen. Brush remarks: 

"Unless more officers are soon furnished, so that companies, troops, 
and batteries shall at least have captains, the Army must deteriorate. 
The lack of permanent, experienced organization commanders is re- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 61 

sponsible for most of the desertions in the Army to-day. One or- 
ganization in this department has had five commanders within the 
year, and this is practically a sample of what is going on through- 
out the service." (P. 38.) 

Gen. Barry expressed himself in the following language : 

"The aim of a captain should be to remain with his company, and 
the aim of the authorities should be to keep him there, and detach 
him only under exceptional circumstances or when the law so pro- 
vides. Many of the duties for which captains are detached might 
well be performed by experienced first lieutenants. The unit upon 
which all military organizations depends is the company, and with 
good companies good battalions, regiments, etc., necessarily follow." 
(P. 38.) 

In his annual report for the year 1906 the Secretary of War used 
the following language: 

" Over 82 per cent of the officers on detached service on June 30, 
1906, were captains or lieutenants of the line. The duties upon Avhich 
detached officers are engaged are all necessary and useful and in the 
main are of a military character and calculated to exert a broadening 
influence upon the officers thus engaged. It goes without saying, 
however, that the details of company officers ought not to be so many 
as to interfere with the discipline and efficiency of their commands. 
Some commanding generals are of the opinion that this point has 
been reached and that this condition of affairs contributes to a rest- 
lessness and dissatisfaction on the part of enlisted men, which is not 
without its effect in the matter of desertions." (P. 28.) 

The Chief of Staff, in a memorandum report to the Assistant Sec- 
retary of War, dated December 2, 1909, suggests the following partial 
remedy : 

" It is believed that the policy should be to furnish a sufficient 
quota of officers for service with companies before filling regimental 
and battalion staff positions, and if a company at any post has less 
than two officers provided for duty with it and a regimental or bat- 
talion staff officer is available, he should be detailed with the said 
company pending the return of the proper quota of company officers." 

In a prior report of April 11, 1908, rendered direct to the Presi- 
dent, the Chief of Staff, commenting on the difficulties encountered 
in the enforcement of regulations respecting detached service of 
officers, expressed the opinion that there was no certain way of pre- 
venting a violation of such regulations, and suggested somewhat 
tentatively the enactment of some kind of a law which would de- 
prive an officer of pay whenever detached in violation thereof in 
these terms: 

"A law would be automatic and self-enforcing * * *. Without 
a practical test of such a law I believe it would be impossible to de- 
termine whether it would promote the best interests of the service 
or not. The provisions of the law should be given most careful study 
in detail or injury to the service is most liable to result. It will 
certainly result in embarrassment and inconvenience at times, no 
matter how drawn. If the President thinks such a law would be 
advisable, this study can be given with a view to introducing it in 
the next Congress." 

Under date of April 13, 1908, the President returned this report 
to the Chief of Staff with the remark: "I agree with you that at 



62 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEBAL. 

present the proposed law v/oiikl not be desirable, as in a number of 
cases its operation might be contrai'y to the best interests of the 
&er\ ice."' This was followed by directions as to administrative meas- 
ures which might be adopted to nuike more certain the strict en- 
forcement of existing regulations limiting detached service. 

Finally, we ha^e to note the Senate resolution of January '2'2, 191-!, 
calling for the names, rank, and organization of all officers of tlie 
line of the Army who during the six years ending July 31, 1911, had 
not served two years in the organizations in which they were respec- 
tively commissioned, or who during the 12 years ending on the same 
day had not served 4 years in said organization, with the nature and 
duration of detached service. The reply of the department thereto, 
dated January 30, 1912, clearly reveals that under the rules of selec- 
tion that had prevailed during the period covered by the repoi't 
excessive absenteeism of particular officers had resulted, many hav- 
ing exceeded the limits of detached service specified in said resolution. 

It thus clearly appears from the above reports and from others of 
this period I have examined that at the time the legislation we are 
here considering Avas pending before Congress strong service opinion 
had manifested itself in an unmistakable and emphatic way to the 
effect that the evil of absenteeism of troop, battery, and company 
offi-cers had greatly impaired the efficiency of the Army; that exces- 
sive detached service of particular officers under the rules of selection 
which Avere followed had resulted; that this evil was to some extent 
promoted by the practice of filling regimental and battalion statf 
{positions at the expense of an adequate commissioned personnel for 
troops, batteries, and companies, and that the opinion of the Chief 
of Staff was against this practice; that the standard fixed by service 
opinion for possible attainment was at least two officers actually 
present for duty with each troop, battery, and company; and that 
under administrative measures adopted there had been failure to 
remedy these evils and generally to achieve the desired results. It is 
also ap]>arent that all these facts were of common knowledge; that 
most of them had been brought directly to the attention of the mili- 
tary committees of Congress in recent years, and were well within 
the knowledge of Congress at the time the legislation here under 
review was enacted. 

It will be of assistance in construing the legislation here in refer- 
ence to trace briefly the history of its enactment. 

The Army appropriation bill as reported to the House by the 
Committee on Military Affairs contained no provision on the subject. 
While the bill was on its passage in the House the following amend- 
inent was offered : 

^•Provided, That hereafter no pay or allowance shall be paid or 
allowed to any officer for any period during which he shall have 
been detached for duty of any kind for more than four of the pre- 
ceding six years from the organization in which he is commi-ssioned, 
unless such continuous detachment from such organization for more 
than four vears shall have been specifically authorized by law." 
K'ong. Yi.ec., Feb. 9, 191i». p. 1990.) 

The amendment was passed by the House in the follovving form : 

"That no money appro])riated by this act sliall be ]iaid to any 
officer for any pei'iod during which he shall have beeti detached for 
any duty of any kind for more than four of the preceding six years 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 63 

from the organization in which he is commissioned, unless such con- 
tinuous detachment from such organization for more than four years 
sliall have been specificallv authorized by law." (See Cong. Eec, 
Feb. 9, 1912, pp. 1991-1993.) 

The bill then went to the Senate and was referred to the Com- 
mittee on Military Affairs, which, in lieu of the detached-service 
provision as enacted by the House, reported the following: 

^'•Provided^ That hereafter in time of peace no officer of the line 
shall be detached or permitted to remain detached from his regiment 
or corps who has not served for at least three years of the preceding 
period of six years prior to such detachment with the regiment or 
regiments of Cavalry, Field Artillery, or Infantry or with the 
organizations of the Coast Artillery Corps to which he shall have 
been assigned by the War Department; but this shall not apply to 
officers detailed in the Ordnance Department and the Bureau of 
Insular Affairs, as authorized by the act of Congress approved June 
twenty-fifth, nineteen hundred and six, and March second, nineteen 
hundred and seven." 

The Senate, after substituting two years for three j^earsand for the 
reference to the act of March 2. 1907, a reference to the act of March 
23, 1910, accepted the substitute of the Senate Committee on Military 
Affairs, and also adopted the following provision: 

'■'• Provided., That no money appropriated by this act shall be paid 
to ni\j officer for an}'' period during which any other officer by his 
order shall have been detached for any duty of any kind for more 
than four of the preceding six years from the organization in wliich 
he is commissioned, unless such continuous detachment from such 
organization for more than four years shall have been specifically 
authorized by law." 

T^pon the disagreeing vote of the House the bill went to conference, 
and the conferees reported the detached service provision in the 
following form: 

'■'Provided., That hereafter, in time of peace, whenever any officer 
holding a permanent commission Avith rank below that of lieutenant 
colonel shall not have been actually present for at least two of the 
preceding six years in that branch of the Army in which he shall 
hold said commission, and with the organization, if any, to which 
he shall have been assigned by competent authority, such officer 
shall not be detached nor permitted to remain detached from said 
branch or from said organization; and all pay and allowances 
shall be forfeited by any superior officer for any period during 
which, by his order, or with his permission, or by reason of his 
failure or neglect to issue or cause to be issued the proper order or 
instructions at the proper time, any other officer shall be detached 
or permitted to remain detached in violation of any of the terms 
of this proviso : Provided further., That nothing in the foregoing 
proviso shall be held to apply in the case of any officer for such 
period as shall be actually necessary for him. after having been 
relieved from detached service, to join that branch in which he shall 
hold a permanent commission and the organization, if any, to which 
he shall be assigned by competent authority, nor shall it be held 
to apply in the case of any officer absent temporarily on courts- 
martial or military boards, or upon leaves of absence authorized by 
existing law: And provided further., That hereafter details to the 



64 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

Ordnance Department may continue to be made as authorized by 
existing law, and, in the discretion of the President, those details, 
or any of them, now existing to the Philippine Constabulary need 
not be terminated until the first day of January, nineteen hundred 
and thirteen." (Conference report, May 27, 1912.) 

The conference report was accepted by both Houses, but the bill 
was vetoed by the President. 

The new Army appropriation bill (H. R. 25531), reported to the 
House by the Committee on Military Affairs on July 1, 1912, con- 
tained the same provision as the original bill passed by the House. 

As passed by the Senate on August 14, 1912, the bill carried the 
following provision : 

^''Provided, That hereafter in time of peace no officer of the line 
shall be detached nor permitted to remain detached from his regi- 
ment or corpjs who has not served -for at least two years of the 
preceding period of six years prior to such detachment with the 
regiment or regiments of Cavalry, Field Artillery, or Infantry, or 
with the organizations of the Coast Artillery Corps to which he 
shall have been assigned by the War Department: but this shall not 
apply to officers detailed in the Ordnance Department, the Bureau 
of Insular Affairs, as authorized by the acts of Congress approved 
June twenty-fifth, nineteen hundred and six, and March twenty- 
third, nineteen hundred and ten, or to any officer on duty in con- 
nection with the construction of the Panama Canal until the same 
shall have been formally opened; and in the discretion of the Presi- 
dent, lip to the first of January, nineteen hundred and fourteen, 
it shall not apply to any officer on duty with the Philippine Con- 
stabulary, and hereafter no officer below the rank of major shall 
be detailed as chief or assistant chief of the Philippine Constabulary, 
and no officer shall hereafter be assigned to duty therewith except as 
specifically provided for by law : Provided^ That duty as a student 
officer at a service school w-ithin the continental limits of the ITnited 
States shall not be construed as detached service within the meaning 
of the preceding proviso." 

The bill then went to conference, and was reported back with the 
proviso substantially amended, the concluding provision excepting 
student officers at service schools being omitted. It was finally 
passed by both Houses in the form in which it appears on page 2 
of this opinion. 

A careful reading of this legislation in its various developments 
as shown above discloses that as to the number of officers affected by 
its provisions the legislation as enacted imposes a less rigorous rule 
than was sought to be imposed in any of the earlier forms of the bill. 
The original proviso applied to all officers, irrespective of grade or 
branch, but its application was subsequently limited to officers below 
the grade of lieutenant colonel, and finally to officers of the line with 
rank below the grade of major. But in respect of detached services 
of officers remaining within its provisions the increasingly restrictive 
character of the legislation is strikingly cAident. In the form in 
which the provision originally passed the House it covered detach- 
ments from the arfn in whicli an officer is commissioned, and there- 
fore service with the arm, though not involving service with a regi- 
ment, troop, battery, or company or service with troops — such as 
membership on the Cavalry or Infantry equipment boards — would 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 65 

have satisfied its requirements. Under the terms of the Senate com- 
mittee's substitute for the House provision, the requirements nar- 
rowed to service with a regiment of Cavalry, Field Artillery, or In- 
fantry, or with an organization — that is, companies — of the Coast 
Artillery, and service with an arm alone would no longer have met 
the requirements. In the form repoi'ted by the conference and finally 
accepted by both Houses of Congress, but vetoed by the President, the 
requirement was for service Avith the hranch of the Army in wdiich 
commissioned and with the organization^ if any, to which the officer 
may have been assigned by competent authority. As*finally enacted 
the i-estriction was made much more severe. The officer must, under 
the law as enacted, be avtually present for duty with a troop, battery, 
or company, for the prescribed period, and if he stands detached 
theiefrom for duty of any kind for a period in excess of that author- 
ized the penalty of the law is incurred. The manner in which the 
language is varied in other specific details in the development of this 
legislation, especially with reference to shifting the burden of loss 
of pay and allowances for violation of the terms of the proviso from 
the officer ordered to the officer ordering or responsible for the issue 
of the proper orders, and to making the penalty which, in the first 
instance, was operative only on money appropriated b}' the Army 
appropriation bill applicable to money appropriated for pay and 
allowances by any act, indicates the firrn purpose of Congress to 
insure the execution of the specific terms of the law. The insertion 
of the word " actually '' before the words '' present for duty " is espe- 
cially significant in this regard. The intent that the legislation here 
under consideration should be drastic in character and sure in its 
execution could hardly have been more emphatically expressed. 

Premising this much as to the purpose and character of the legisla- 
tion here under consideration, I will proceed to answer the several 
questions submitted which it will be convenient again to quote : 

'•i. Does the date fxed in the joint resolution^ r/s, December 15^ 
1912^ mark the date on irhich the penalty of the proviso will comn- 
mence to apply ^ so that all changes in stations of officers must he 
accomplished on or before that date^ or is a reasonable time given 
after that date to axconiplkh such change?''' 

The reasoning of the Supreme Court of Indiana, in the case of 
Pennsylvania Company v. State, decided November 1, 189.5, appears 
to be decisive of this question. The court in that case had under con- 
sideration an act requiring railroad companies under heavy penalties 
to place in each passenger depot where there was a telegraph office a 
blackboard and to note thereon at least 20 minutes before the time 
for the arrival of each passenger train, the fact as to whether su.ch 
train was on time, and if late, how much. The act was approved 
March 9, 1889. and, under a provision of the constitution of the State, 
went into effect 60 days thereafter, or on May 10, 1889. The company 
contended, in effect, that it w^as entitled to a reasonable time after 
the latter date in which to prepare and place blackboards upon which 
to note the time of arrival of trains. The court, first noting the 
language of the act as to the time when compliance should begin, viz, 
" immediately after the taking effect of this act," answered the con- 
tention in the following language: 

93668°— 17 .5 



6G DIGEST OF OPJXIONS OF THE JUDGE ADVOCATE GENERAL. 

" If there had been an emergency chuise under which penalties 
wouhi by the letter of the law have attached at once npon its jjassage, 
manifestly it would have worked gi-eat hardship to hold that the 
legislature meant to inflict heavy penalties for failing to do that 
which necessarily required time for preparation to do. Probably the 
situation thus stated would have required the holding that the word 
' immediately ' was not employed to exclude the intervention of a 
reasonable time within which to prepare and place the boards re- 
quired. So A^e may say with reference to the time when the law went 
into force (May 10, 1889). if that were the first notice that railway 
companies were required to take of the law. As we find it, the lav/ 
was approved March 9, 1889, and was proclaimed in force May 10, 
1889 — more than 60 days, and, upon the allegations of the answer, 
an abundant time within which to prepare for compliance with the 
law and for the avoidance of the prescribed penalties. The law hav- 
ing passed without an emergency clause, was not in force until May 
10. 1889. However, that its passage by the legislature and the decla- 
ration of the constitution that it should be in force from its distribu- 
tion and the proclamation of the governor were notice to railway 
companies sufiicient to enable them to prepare for its requirements 
we have no doubt." 

Had the joint resolution not been passed the proviso liere under 
consideration would have been in force and effect in its entirety from 
the date of its approval, i. e., from August 24, 191-2. In this event 
the holding would have been a necessary one that the fact that the 
act went into immediate effect upon approval did not operate (using 
the language of the case above cited) to ''exclude the intervention of 
a reasonable time within which to prepare "' for a compliance with 
the law and for the avoidance of the prescribed penalties. The effect 
of the joint resolution, however, was to postpone the execution of 
this provision for a period of nearly four months, and, I think, fol- 
lowing the doctrine of the ab(!ve case, this postponement must be 
held to be a grant of what the Congress regarded as the time neces- 
sary to enable the department to prepare for compliance with the law. 

I therefore answer your first question that the period between the 
approval of the proviso (Aug. 24. 1912), and the date of its taking 
effect (Dec. 15, 1912), is one of preparation for meeting the require- 
ments of the statute; that the changes in the status and stations of 
officers necessary to meet the requirements of the proviso must be 
ordered so as to become effective on or before December 15, 1912; 
and that on and after that date the penalty clause of the proviso 
will be operative against any officer responsible for its nonenforce- 
ment. 

2. Is the lanriuarie of the proviso^ " aetuoJly present for duty for at 
least two of the last precedwg sic years irith the troops hatter]/^ or 
company of that hraneh of the Army in irhJrh he" shall hold saul 
cominissior}^'''' to he interpreted literally as meaning that an officer 
must he actually present on, duty tn'th a troop, hattery, or coTiipany; 
or can it he fairly interpreted as 'ineamny that he must he present and 
availahle for duty with a troop, hattery, or company? 

This second inquiry relates to the initial part of the proviso, whicli 
it will be convenient again to quote: 

'"'Provided, That hereafter in time of peace whenever any officer 
holding a ])ermanent commission in the line of the Army with rank 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 67 

below that of major shall not have been aetualh/ present for duty for 
at least two of the last precedin£r six years with a troop, hattery^ or 
company of that branch cf the Arni}^ in which he shall hold said 
commission, such officer sliaXl not he detached nor perinHted to remain 
detached from such troop^ hattery, or company for duty of any kind; 
and all pay and allowances shall be forfeited by any superior for 
any period during which, by his order or his permission, or by reason 
of his failure or neglect to issue or cause to be issued the proper order 
or instructions at the proper time, any officer shall bo detached or 
permitted to remain detached in violation of any of the terms of this 
proviso ; * * *." 

The proper construction of the above-quoted provision turns on 
the meaning to be assigned to the italicized words " troop," " bat- 
tery," and " company," and the italicized phrases " actually present 
for duty" and "shall not be detached nor permitted to remain de- 
tached * * * for duty of any kind." The interpretation to be 
given the words " troop," " battery," and " company " will be first 
considered. 

The act of February 2, 1901 (31 Stat.. 743), fixes the strength of 
eacli arm or branch of the service and then provides: 

" Sec. 2. That each regiment of Cavalry shall consist of * * * 
one band and twelve troops * * * • each Cavalry band shall be 
organized as now provided by law. Each troop of Cavalry shall 
consist of one captain, one first lieutenant, one second lieutenant, one 
first sergeant, one quartermaster sergeant, six sergeants, six cor- 
porals, two cooks, two farriers and blacksmiths, one saddler, one 
v,-agoner, two trumpeters, and fortj^-three privates * * *." 

Substantially similar provisions appear in section 10 of the same 
act^ which prescribes the organization of an Infantry regiment and 
company; and in sections 7 and 8 of the act of January 2."), 1907 (31 
Stat.. 862), which prescribes the organization of the Field Artillery 
regiment and battei-y : and in sections 5 and 6 of the latter act. which 
prescribes the organization of the Coast Artillery and provides 
that— 

^ Each company of Coast Artillery shall consist of one captain, 
one first lieutenant, one second lieutenant, one first sergeant, one 
quartermaster sergeant, two cooks, two mechanics, two musicians, 
and such number of sergeants, corporals, and privates as may be 
fixed by the President * * *." 

It thus appears from the legislation quoted that Congress has 
specifically designated the composition of regiments, distinguishing 
between troops, batteries, and companies, on the one hand, and bands 
on the other; and has likewise designated the composition of troo})s, 
batteries, and companies, by prescribing the number and grades of 
officers and enlisted men for each. In so doing it has. I think, pro- 
nounced a fairly specific definition of what a troop, battery, or com- 
pany is, and has plainly limited the number of them that normally 
compose the several branches of the service. The presumption is 
strong that Congress has employed these terms in the proviso here 
under consideration in the sense they are defined in the legislation 
above quoted, and this presumption should prevail, unless a wider 
definition is suggested by the context. 

In your third inquiry the question is raised whether the terms 
" troop," "battery," and "company" can not be construed to cover 



68 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

machine-gun platoons and regimental detachments, such as rifle 
teams; and, of course, the same question arises as to the Army service 
detachments maintained at the service schools and at the Military 
Academy, the Cavalry, Field Artillery, and Engineer detachments 
maintained at tlie latter point, and the recruit and prison companies 
maintained at the recruit depots and the United States Military 
Prison and its branch. 

The recruit and prison companies are authorized by the acts of 
June 12, 1906, and March 2, 1907 (34 Stat., 242, 1160), and by the 
act of March 3, 1909 (35 Stat., 741). Under the terms of these acts 
these companies are composed of enlisted men drawn from the Army 
at large, and are given the noncommissioned officers allowed by law | 
for Infantry companie.s. While their organization resembles more 
closely that of the Infantry company, it is not the effect of the law 
to assign them to the Infantry branch of the Army. In practice' 
these companies are officered indiscriminately from officers drawn 
from the four branches of the service. It will scarcely be contended! 
by anyone that service of an officer of Cavalry, Field Artillery, ori 
Coast Artillery with a recruit or prison company would be service 
with a troop, battery, or company of th-at bi'cmeh of the Army Itv 
which lie is ccmnnissioned^ and I think this must be held to be true 
also in the case of an Infantry officer serving with one of these com- 
panies; not only is he not serving with an organization of the 
branch of the Army in which he is commissioned, but the range of 
his duties while so serving stands limited by the purpose for which 
these companies are created and maintained, viz, recruit instruction 
and the guarding of prisoners w^ith the incidental company adminis- 
tration. This does not constitute in any sense the equivalent of the 
training and experience which are incident to actual service in a 
corresponding unit of his branch, and which it is the primary pur- 
pose of the statute to enforce. The same observations hold in re- 
spect of service of an officer with the Cavalry, Field Artiller3^ and 
Engineer detachments maintained at the Military Academy, and the 
Army service detachments maintained at the service schools. All 
these detachments are constituted by detaching men from the Army 
at large, and they are not made component parts of any branch of 
the service by provision of law. I do not understand that the at- 
tempt is made in any of them to carry on that comprehensive train- 
ing which is usual in corresponding units of the several branches of 
the service and most necessary for efficient field service. 

For the reasons here indicated I conclude that an officer's service 
with recruit and prison companies, or with any of the detachments 
above named, is not service with a troop, battery, or company of the 
branch of the service in which he is commissioned, and does not, 
therefore, meet the requirements of the statute. 

We come now to the phrase " actually present for duty." " Present 
for duty " is the language of the troop, battery, and company morn- 
ing report — language which conveys to every line officer a definite 
meaning. Before the w ords " present for duty " we find, by way of 
empliasis, the word "actually." I can not see my way clear to treat 
the insertion of this word as without ])urpose and meaning, and must 
conclude that by the use of the emphatic word " actually " in connec- 
tion with the definite phrase " present for duty " Congress intended 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 69 

to make clear that the expression shoiikl be construed in a literal and. 
restricted sense. 

In the construction of tlie proviso we are aided at this point by 
keeping in mind the obvious purpose of the law which, in effect, is 
to define and regulate the service relation of the line officers of com- 
pany grade to troops, batteries, and companies, with a view to in- 
suring the requisite amoiuit of service with each of these units. It 
will be readily conceded, I think, that performance of duty is the 
object of the presence which the statute commands, and is the single 
contemplation of the phrase "" actually present for duty," and, fur- 
ther, that any presence that does not contemplate as its primary 
purpose and result the performance of duty as the duty shall nor- 
mality occur is a constructive rather than an actual presence for duty 
and is not a compliance with the statute. 

The conclusion here reached indicates very plainly the answer 
respecting the status of regimental staff officers; but as special argu- 
ment was made in their behalf in one of the memoranda submitted 
to me for consideration, their status under the proviso will be more 
fully discussed. 

Attention was invited in said memorandum to the fact that regi- 
mental staff' officers remained present with the command, though they 
were not actually present with a troop, battery, or company ; that 
they are on duty w ith troops and perform service therewith ; and, 
further, that they are immediately available under the orders of the 
commander of the regiment to rejoin troops, batteries, or companies, 
as the exigencies of the service require ; and it is argued that in being 
thus present with the regiment and being immediately available 
under the orders of the regimental commander for duty with troops, 
batteries, or companies it should be held that thev are actually pres- 
ent for duty with a troop, battery, or company within the sense of 
the statute. 

Regimental staff officers are appointed from the captains of the 
regiment by the regimental commander and are designated not as 
"company officer," but as "adjutant," "quartermaster," and "com- 
missary" (A. E., 248) ; their duties as prescribed are entirely dif- 
ferent from the normal duties of the company officer (A. H., 251 et 
seq. ) ; their tours are limited to four years, and an officer is ineligible 
for a second tour " until he shall have served two years as a coinpany 
officer" (A. R., 249) ; they are not borne on any troop, battery, or 
company roll, report of return " for duty," or otherwise, but are 
returned as a part of the headquarters, field, and staff. The appoint- 
ment of a regimental staff' officer, as a rule, in and of itself cancels 
his assignment and separates him from his company, and the Regu- 
lations contemplate that he shall not render company duty except 
by virtue of special assignment by the regimental commander (A. R., 
255). His normal duties are not, therefore, those of a company offi- 
cer, and the mere fact that he is directly and exclusively subject to 
the orders of his regimental commander can have no effect upon his 
relation or status with a company or as a company officer until the 
regimental commander gives the order and creates the relation or 
status; whereupon the staff officer becomes a company officer and 
stands ready to perform, and in the natural course of events does 
perform the usual and normal duties of a company officer. The 



70 DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENERAL. 

regimental staff officer lias the potential status, which may be trans- 
lated into the actual status; but in this regard the word actual is the 
antithesis of the word potential^ or, legally speaking, of the word 
" constructive." The use of the word " actually " in the proviso pre- 
cludes a resort to the suggested construction that the regimental 
staif officer can be held to be present for duty with one of the organi- 
zations named. This reasoning applies as well to post and battalion 
staff officers and to other officers withdrawn by regimental and post 
commanders by authority of law, regulation, and customs of service 
fr(im performance of company duties. 

But the construction suggested must be rejected, I tluuk, for oth.er 
reasons. ¥/e have already seen that in the offilcial reports on ab- 
senteeism of officers of company grade which preceded and pre- 
sumably led up to this legislation stress w^as laid upon tlie objection- 
able ]3ractice of filling regimental and battalion staff positions by 
depleting a troop, battery, or company of its officers. To adopt the 
construction suggested would be to deny to the statute remedial 
effect as to this evil. Further, under the construction suggested, an 
officer by alternating tours of ordinary detached service with de- 
tails to regimental, battalion, and post staff positions would be able 
to avoid compliance with wdiat I conceive to be the plain requirement 
of the statute for two years' actual presence for duty with a troop, 
battery, or company out of each six-year period, and thus remain 
continuously absent from duty with such organizations during his 
service in company grades. It can not reasonably be assumed that 
Congress intended to permit this. , 

From these considerations I conclude that in determining when 
officers who have been withdrawn from the performance of normal 
duty with a troop, battery, or company, including those so with- 
drawn by the orders of their immediate regimental or post command- 
ers, may be treated as again "actually present for duty" with a 
troop, battery, or company, the true rule is that when such an officer 
shall resume, pursuant to competent orders, such an actual relation 
to a company as will make him available, without further orders, to 
perform the usual duties of his grade with respect to said company, 
with the primary purpose of performing them, and therefore stands 
able and ready to perform them as they arise in the course of mili- 
tary administration, he is " actually present for duty " with a troop, 
battery, or company within the meaning of the statute; and that 
anything short of this would be only a constructive ])resence, and 
not a compliance with the proviso. If an officer is not thus present 
for duty with a troop, battery, or company, then he is not actually 
present witliin the terms or intendment of the proviso, if its words 
are not to be forced out of their evident meaning. I may add tliat I 
find nothing in the law which prevents the assignment of additional 
duties to an officer of company grade, provided it leaves him in the 
duty status to his organization as here defined. 

In the construction of the phrase " shall not be detached nor per- 
mitted to remain detached * * * for duty of any kind " the 
qualifying Avords "of any kind" must be held, I think, to bring 
within the purview of the jjhrase all descriptions of duty for which 
it is customary to detach officers irrespective of its character or 
duration. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENESAL^ 71 

The suggestion has been made to me that it vvoiikl be competent 
to read into the proviso an exception as to an}^ detached duty vhich, 
imder the customs of the service or the usual practice of military 
administration, would not require a formal order of detachment 
from a troop, batter}^, or company, such as absence undergoing exam- 
ination for promotion, on duty as member of boards, courts, or com- 
missions, or on minor duties directed to be performed by post or 
regimental commanders, such as map making, etc. In construing the 
phrase "actually present for duty" I have not been able to regard 
the kind of order which creates or destroys the duty status or the 
grade of authority that issues such orders as a material fact. Neither 
do I think it is material in determining whether any kind of ''' de- 
tachment '' comes within the terms of the proviso. The law regards 
substance, not form. The mere fact that a formal order is not re- 
quired or is not issued or does not denominate such duty as detached 
duty, or does not in terms order a detachment of any kind, can not 
conclude the facts in the case or serve to qualify the force of the 
words of the proviso " duty of any kind "; nor can I see how, under 
the terms of the statute, the duration of the duty, whether transitory 
or temporary or for the longer and usually more or less definite 
periods, can serve to extinguish its character as " duty of any kind/' 
All absences of an officer from his organization for duty of any kind 
are within the terms of the ]5roviso. ♦ 

In the light of what is stated above I answer your second inquiry 
as follows: The use of the word "actually'"' in connection with, the 
phrase " present for duty " requires that the phrase should be con- 
strued literally — that is, that the officer should be present 07i duty 
with one of the organizations prescribed, in the sense that he is in a 
regular and normal duty status with respect thereto, although it may 
at times be impracticable for him actually to perform every duty 
normally pertaining to the status — and, therefore, as excluding an 
officer Avho. although physically present at the post or station where 
his troop, battery, or company is serving, is separated from duty 
there v,dth by an order assigning him to other duties, notwithstand- 
ing he may be available for such duty in the sense that an order from 
his immediate commander would restore him to such duty. 

Applying the conclusions I have reached to \o\\v third and fourth 
inquiries, I answer as follows: 

(«) That an officer of company grade under compliance with 
orders to perform any of the descriptions of duty mentioned in said 
inquiries is not to be considered as actually present for duty with a 
troop, battery, or company ; provided, always, that the order assign- 
ing him to such duties operates to relieve him from the performance 
of duty with his proper organization; excepting the officer who com- 
mands a detached portion of liis troop, battery, or company, who 
must under those conditions be held, I think, to be actually present 
for duty with his organization. 

{h) That an officer of company grade who is sick in quarters, or in 
hospital at his post or elsewhere, or in quarantine at the station where 
his organization is on duty or elsewhere, or in compliance wdth sum- 
mons from a civil or military court, or in arrest, or undergoing trial, 
or traveling in compliance with orders to change station from one 
company assignment to another, or absent with leave, thougli not 
" actually present for duty " with his organization, is not to be con- 



72 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

sidered as detached from his organization "■ for duty of any kind " 
in such sense as to bring into operation the penalty chiuse of the 
proviso. 

(c) The status of "' awaiting orders " is an exceptional one in our 
service, and the attendant circumstances in each case must be relied 
upon to determine whether the placing of the particular officer in 
that status may or may not bring into operation the penalty clause 
of the proviso. 

As a matter of administration I have to advise you further that 
the effect of the proviso is to require that an accounting shall be 
opened up with all line officers of company grade under the two 
headings, viz, " actually present for duty with a troop, battery, or 
company," and " detached from a troop, battery, or company for 
duty of any kind." The first account will reveal the officer's eligi- 
bility for detached service; the second will reveal the field applica- 
tion of the penalty clause of the statute. The accounting will also 
reveal a third status of officers of company grade in which they are 
neither '' actually present for duty " with a troop, battery, or com- 
pany, nor detached therefrom " for duty of any kind." Such absences 
from duty with a company will prevent the officers from accumu- 
lating eligibility for detached service, but will not furnish any occa- 
sion for the application of the penalty clause of the proviso. 

In answering as above I have not been unmindful of the incon- 
veniences which will flow from enforcing the proviso in the sense I 
have construed it, nor of the extent to which the normal execution 
of other laws relating to the Military Establishment may be ob- 
structed thereby. The inconveniences are of a sufficiently serious 
character to justify, under accepted canons of construction, the most 
careful scrutiny of the proviso for the purpose of ascertaining 
whether there is not some other construction, permissible under its 
letter and spirit, by which these inconveniences may be avoided. 
But whenever I have attempted in this way to read into the proviso 
an exception of any duty the principle involved would have required 
the inclusion of a large class of duties which would residt in de- 
feating to a considerable extent its obvious purpose. However, the 
most careful scrutiny of the proviso and study of the service condi- 
tions to which it must apply convince me that there are no insuper- 
able obstacles to administering it according to the plain and obvious 
import of its words ; that w^e have to deal w ith nothing more serious 
than inconveniences, and perhaps some increase in the expense of 
maintaining the Army incident to the fact that under the terms of 
law the number of officers eligible for detachment for duty is so re- 
duced as to necessitate, in all probability, numerous details for less 
than the maximum period prescribed or authorized by law and regu- 
lations. But I do not think that the obvious purpose in view in the 
enactment of this legislation should be restricted or hampered by 
giving controlling effect to inconveniences which are incident to 
literal construction and strict enforcement. In the light of the his- 
tory of this legislation, and considering the unequivocal and emphatic 
language which Congress has employed, T am compelled to conclude 
that the inconveniences referred to were well within the contempla- 
tion of Congress and the intent Avas deliberate to face the possibility 
of their incurrence with whatever additional expense was incident 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 73 

thereto, in order to avoid what was conceived to be greater incon- 
veniences with resulting greater detriment to the service incident to 
the continuance of a system under which officers may pass through 
the company grade with insufficient service with their organizations. 

E. H. Crowder, 
Judge Advocate General. 

[Fourth indorsement.] 

War Department, 
Judge Advocate General's Offtce, 

Octoher 14, 1912. 
To tlie Chief of Staff, 

1. In the foregoing letter, dated September 4, 191-2, Capt. Mark L. 
Ireland, Coast Artillery Corps, after referring to the recent legisla- 
tion respecting detached service, states, inter alia^ that he was detailed 
for duty in the Ordnance Department from July 1, 1906, to Octo- 
ber 5, 1909 ; that on October 9, 1909, he complied with paragi'aph 13, 
S. O. No. 196, War Department, 1909, directing him to report to the 
commanding officer of the Artillery District of the Columbia, for staff 
duty; that from about February 10 to September 2, 1910, he was at- 
tached to the One hundred and sixtieth C^ompany, Coast Artillery 
Corps, under orders from the Artillery district commander ; that he 
performed duty with the One hundred and sixtieth Company during 
the entire period of his attachment thereto, except from July 25 to 
August 24, 1910, during which period he was detached for duty as an 
umpire at the camp of instruction at American Lake, Wash.; that 
he was in command of said company from March 19 to April 26, 
1910; that he is at present on duty as a student officer at the Coast 
Artillery School, Fort Monroe, Va. ; and that if his " Ordnance serv- 
ice is not counted and credit is given for the company duty per- 
formed with the One hundred and sixtieth Company. Coast Artillery 
Corps," his status is such as to permit him to complete the advanced 
course in the Coast Artillery School. 

2. The legislation referred to above is found in the Army appro- 
priation act of August 24, 1912 (37 Stat., 571), as amended by a 
joint resolution of August 24, 1912 (37 Stat., 645), and, in so far as 
material to the present inquiry, reads as follows: 

(1) '•'■Provided., That on and after December fifteenth, nineteen 
hundred and twelve, in time of peace whenever any officer holding a 
permanent commission in the line of the Army with rank below thiit 
of major shall not have been actually present for duty for at least 
two of the last preceding six y^ars with a troop, battery, or company 
of that branch of the Army in which he shall hold said commission 
such officer shall not be detached nor permitted to remain detached 
from such troop, battery, or company for duty of any kind ; 

(2) " and all pay and allowances shall be forfeited by any superior 
for any pei'iod during which, by his order, or his permission, or by 
reason of his failure or neglect to issue or cause to be issued the 
proper order or instrnctions at the proper time, any officer shall be 
detached or permitted to remain detached in violation of any of the 
terms of this proviso; 

(3) "but nothing in this proviso shall be held to apply in the case 
of any officer for such period as shall be actually necessary for him, 



74 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

after hiiving been relieved from detacheil .ser^ ice, to join the troop, 
battery, or company to whicli he shall belong in that branch in which 
he shall hold a permanent commission; 

(4) "nor shall anything in this proviso be held to. apply to the 
detachment or detail of officers for dnty in the Judge Advocate Gen- 
eral's Department or in the Ordnance Department, or in connection 
Avith the constrnction of the Panama Canal until after such canal 
shall have been formally opened, or in the Philippine Constabulaiy 
imtil the first day of January, nineteen hundred and fourteen, or to 
any officer detailed or who may be hereafter detailed for aviation 

duty." 

3. Capt. Ireland's letter raises two questions, which may be stated 

as follows: 

First, In view of the detached-service provision of the act of Au- 
gust 24, 1912, does a captain or lieutenant of the line by serving under 
detail in the Ordnance Department accumulate ineligibility for de- 
tached service in general? 

Second. Is a captain or lieutenant of the line Avho, nnder an order 
attaching him to a troop, battery, or company of the br-anch in which 
he is commissioned, actually serves with such organization " actually 
present for duty * * * with a troop, battery, or company " 
within the meaning of the detached-service provision of the act of 
August 24, 1912? 

4. In connection with the first question raised by Capt. Ireland, 
lie suggests that while one evident purpose of the clause " nor shall 
anything in this proviso be held to apply to the detachment or 
detail of officers for duty * * * in the Ordnance Depart- 
ment * * * " is to avoid hampering the dejiiirtment in securing 
the services of officers for detail therein, the language used has a 
broader meaning and requires that the clause be consti'iied so as to 
prevent service under detail in the Ordnance Department from 
rendering an officer ineligible for detached service in general. 

T). As I construe the statutory provision quoted in paragraph 2 
hereof, the first clause prescribes in sweeping terms that no captain 
or lieutenant of the line shall be detached or permitted to remain 
detached for duty of any kind from a troop, liattery, or company of 
the branch in which he is commissioned unless he shall haxe been 
actually present for duty with such troop, battery, or company for 
at least two of the last preceding six years; and the second clause 
prescribes a penalty to be sulfered by any superior Avho directs the 
detachment of an officer or permits him to remain detached from a 
troop, battery, or company in violation of the rule laid down in the 
first clause; While the third and fourth clauses provide that neither 
the rule which forbids the detachment of an officer or his remaining 
detached nor the rule which prescribes a penalty shall be operative 
when the reason for which the detachment is orderecl or continued 
is for the purpose of enabling an officer relieved from detached 
service to join a troop, battery, or company, or for the purpose of 
employing an officer in the manner specified in the fourth clause. 
This construction gives fidl force and effect to the causes ''but noth- 
ing in this proviso shall be held to apply to * * * " and " nor 
shall anything in this proviso be held to apply to * * *": for 
thus construed the provision ])ermits an officer to remain detached 
from " a troop, battery, or company '' while en route from a dc- 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXEBAL. 75 

tachod-sei'vice station to the station of his organization or vdiile 
detailed for duty in the Ordnance Department or for any other duty 
S]58cified in the fourth clause. The blotting ou.t of the provision 
when the assignment of an officer to any duty described in the third 
or fourth clause or his continuation on such duty is in question meets 
every requirement of the language employed in those clauses. On tlie 
other hand, to hold that the third and fourth clauses have the eii'ect 
of changing constructively the character of the duty therein men- 
tioned so that such duty may be counted as duty " wit:h a troop, bat- 
teiy, or company," or to hold that those clauses warrant disregarding 
or treating as nonexistent any time devoted to the duties described 
therein, to the end that any period of troop, battery, or company 
service not within the last preceding six years may be counted in 
determining general eligibility for detached service, would be to 
read into the clauses a meaning that the language employed does 
not import, and would be inconsistent with the requirement of the 
first clause, which makes actual presence for duty " vrith a troop, 
battery, or company " for a specified portion of the last preceding six 
years the test of general eligibility for detached service. 

6. For the reasons stated, I am of the opinion that a captain or 
lieutenant of the line who serves under detail in the Ordnance De- 
partment thereby accumulates ineligibility for detached service in 
general ; that in determining Capt. Ireland's eligibility to remain on 
duty as a student officer at the Coast Artillery School on and after 
December 15, 1912, and therefore away from a company of the Coast 
Artillery Corps for duty not of the kind specified in tlie third and 
fourth clauses of the detached-service provision of the act of August 
24:, 1912, the period of his service in the Ordnance Department within 
the last preceding six years must be taken into account, and that 
such service may not be treated as service with a company of tlie 
branch in which he is commissioned. 

7. With reference to the second question raised by Capt. Ireland 
the following extract from an earlier opinion in which this office 
discussed at length the detached-service provision here under con- 
sideration is in point, viz : 

" * * * In determining when officers who have been withdrawn 
from the performance of normal duty with a troop, battery, or com- 
pany, including those so withdrawn by the orders of their immediate 
regimental or post commanders, may be treated as again ' actually 
present for duty ' with a troop, battery, or company, the true rule is 
that when such an officer shall resume, pursuant to competent orders, 
such an actual relation to a company as will make him available with- 
out further orders to perform the usual duties of his grade Avith 
respect to said company, with the primary purpose of performing 
them, and therefore stands able and ready to perform them as they 
arise in the course of military administration, he is ' actually present 
for duty ' with a troop, battery, or company within the meaning of 
the statute; and that anything short of this would be only a con- 
structive presence and not a compliance with the proviso. If an 
officer is not thus present for duty with a troop, battery, or compa"ny 
then he is not actually present within the terms or intendment of 
the proviso if its words are not to be forced out of their evident 
meaning. I may add that I find nothing in the law which prevents 



76 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

tlie sissignment of additional duties to an officer of company grade 
provided it leaves him in the duty status to his organization as here 
defined." (6-124, Sept. 16, 1912.) 

8. In applying the rule stated in the preceding paragrapli it 
appears to me to be immaterial whether an officer is " assigned "^to 
the troop, battery, or company with which he may be serving or 
"' attached " thereto, provided the officer actually occupies the regular 
and normal duty status of his grade with respect to the organization. 
But in holding that an order of attacliment to a company followed 
by the normal performance of duty therewith is the equivalent of a 
formal assignment to a vacancy in said company, I do not mean to 
be u.nderstood as holding that by attachment of an indefinite number 
of officers of company grade to a company, with division of the 
duties among them, the requirements of the law are met. The com- 
plement of officers for each troop, batterj^, and company has been 
fixed by statute. See sections 2 and 10, act of Februarv 2, 1901 
(31 Stat., 748 and 750), and sections 6 and 8, act of January 25, 1907 
(34 Stat., 862). In the execution of the law this statutory comple- 
ment may not be exceeded, except possibly under emergent or unusual 
conditions of the service calling for a commissionecT personnel be- 
yond the statutory complement ; but to increase the num.ber of officers 
with a company beyond the statutory complement for a company for 
tlie primary purpose of giving to the additional officers a company 
duty status would, in my opinion, clearly be an evasion of the 
statute. 

9. The papers in reference do not present sufficient facts to justify 
me in expressing an opinion as to whether or not Capt. Ireland is 
entitled to credit as having been actually present for duty with a 
company, within the meaning of the detached-service provision, 
during the period he was attached to and performing duty in the 
One himdred and sixtieth Company, but the rule stated in the pre- 
ceding paragraph will determine the matter when applied to the 
facts in the case. 

E. H. Ckowder, 
Judge Advocate General. 

[First indorsement.] 

War Depart:ment, 
Judge Advocate General's Office, 

Octoher i, 1912. 
To the Chief of Staff : 

1. The accompanying memorandum from the War College Divi- 
sion, Office of the Chief of Staif, is referred by the Acting Cliief of 
Staff, September 26, 1912, for opinion on the questions raised therein 
regarding the construction of certain provisions of section 2 of the 
Army appropriation act of August 24, 1912 (Public, No. 338), for 
the creation of an Army Reserve. 

2. The section provides, inter alia., for all enlistments on and after 
November 1, 1912, to be for terms of seven years, " the first four years 
in the service with the organizations of which those enlisting shall 
form a pai-t and, ex('ei)t as otherwise provided herein, the last th.ree 
years on furlough and attached to the Army reserve hereinafter 
pro\ ided for." 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 77 

Then follows seven provisos, which may be briefly referred to in 
their order as providing as follows: 

First. P'or reenlistment for anothei- period of seven years, after 
four years' continiwus service under any enlistment^ with final dis- 
charge from previous enlistment. 

Second. For furlough to reserve upon written application " after 
three years' continuous service" in the discretion of the Secretary of 
War. 

Third. For four years " as an enlistment period for computing 
continuous-service pay." 

Fourth. For defining the "Army Eeserve " as consisting of " all 
enlisted men who, after Juiring served not less than four yea.rs vnth 
the organizations of lolvich they form a part^ shall receive furloughs," 
etc., and that " when any soldier is furloughed to the reserve his 
accounts shall be closed, and he shall be paid in full to the date such 
furlough becomes effective." 

Fifth. For the soldier under certain conditions, upon his written 
application, to "have the right of remaining with the organization 
to which he belongs until the completion of his whole enlistment 
without passing into the Reserve." 

Sixth. For the final discharge, except as provided in the first pro- 
viso " or as now otherwise provided by law," only upon completion 
of full term of seven years ; for reenlistment " for a further term of 
seven years under the same conditions in the Army at large, or, in the 
discretion of the Secretary of War, for a term of three years in the 
Army Reserve''''; and for enlistment in the Army reserve for three 
years of any honorably discharged soldier with character " at least 
good and who has been found physically qualified for the duties of a 
soldier, if not over 45 years of age." 

Seventh. For the summoning by the President, " in the event of 
actual or threatened hostilities " * * ivhen so authorized l>y 
Congress * * * all furloughed soldiers toho helong to the Army 
Reserve to rejoin their respective organizations^ and during the con- 
tinuance of their services with such organizations they shall receive 
the pay and allowances authorized by law for soldiers serving 
therein, and any enlisted man who shall hmve reenlisted in the Army 
Reserve shall receive during such service the additional pay now 
provided by law for the soldiers of his arm of the service in their 
second enlistment period. Upon reporting for duty and being found 
physically fit for service they shall receive a sum equal to $5 per 
month for the months during which they have belonged to the re- 
serve, as v,^ell as the actual cost of transportation and subsistence 
from their homes to the places at which they may be ordered to re- 
port for duty under such summons." 

3. It will be noted that the fourth proviso defines the "Army Re- 
serve " as consisting " of all enlisted men who, after having served 
7iot less than four years with the organizations of which they form a 
part, shall receive furloughs without pay or allowances until the 
expiration of their terms of enlistment," etc., while the second pro- 
viso gives the Secretary of War discretion to furlough and transfer 
to the Army Reserve " any enlisted man at the expiration of three 
years' continuou.s service * * * upon his Avritten application," 
etc.; and the sixth proviso authorizes the reenlistment of men dis- 
charged at the expiration of the seven-year term, " in the discretion 



78 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

of the Secretary of War, for a term of three years in the Army Re- 
serve," and also authorizes the enlistment of any person who may 
liaN'e been discharged honorably from the Eegular Army v.ith char- 
acter reported '' at least good * * * in the Army Reserce for a 
similar term of three years." It is clear from the section as a whole 
that the Army Eeserve consists of four classes, viz : 

{a) Those furlonghed to the Reserve at the end of three years; 

{h) Those fnroiighed to the Reserve at the end of four years; 

(<?) Those who reenlist in the Army Reserve at the expiration of 
their full term of seven ^/ears; and 

(fZ) Those who being honorably discharged soldiers of the Regu- 
lar Army enlist in the Reserve as authorized in the sixth proviso. 

The fourth proviso appears, therefore, to be only a partial defini- 
tion of the Army Reserve and shou.ld be so regarded. The latter 
part of that proviso, however, broadly provides that " when any 
soldier is furloughed to the Reserve his accounts shall be closed and 
he shall be paid in full to the date such furlough becomes effective," 
and should, it is believed, be held to apply to soldiers iurioughed 
and transferred at the end of three years as well as those furloughed 
and transferred at the end of four years. Treating the fourth pro- 
viso as a partial definition only, there appears to be no occasion to 
further consider the question of conflict between the second and 
fourth provisos. 

4. It will be convenient to consider the second and third (juestions 
together, viz : 

"(•2) Do men who enlist or reenlist in the Army Reserve form a 
class different from the Army Reserve composed of furloughed sol- 
diers, and after enlisting or reenlisting in the Army Reserve are they 
to be considered as belonging to a particidar organization and as on 
furlough from that organization? 

"(3) Does the term ' furloughed soldier,' on line 4-2, page 25 (Pub- 
lic, No. 338), include all classes of reserves, i. e., those wliose enlist- 
ment has not yet expired and those who have enlisted or reenlisted 
in the Army Reserve i " 

It will be observed that the statute, vrhile providing for an Army 
Reserve, does not malvc any provision for its oiganization as such, 
nor does it proA'ide for the men authorized to be " enlisted in the 
Army Reserve" to be attached to particular organizations of the 
Regular Army. The second and fourth provisos authorize soldiers 
to be furloughed and transferred to the Army Reserve without dis- 
charge after three and four years, respectively, to serve out their 
enlistments in the Reserve; the fourth proviso referring to the 
soldiers transferred after four years' service as forming "a part" 
of their respective organizations; and the seventh proviso is that " in 
the event of actual or threatened hostilities the President, when so 
authorized by Congress, may summon all furloughed soldiers that 
helong to the Army Reserre to rejoin their organizations.'''' 

Taking these several provisions together, it would seem that the 
statute contemplates that soldiers furloughed and ti-ansferred to the 
Reserve are to be regarded as on furlough from their resjiectiye 
organizations, although they can not be called \\\)0\\ " to rejoin their 
respective organizations" except" in the event of actual or threatened 
hostilities '•' " * when so authorized by Congress." The sixth 
proviso authorizes reenlistments and enlistments in the Armij Re- 



DIGEST OF OPIISriOXS OF THE JUDGE ADVOCATE GENEEAL. 79 

serve., which, as already constituted, is not organized; and as al- 
ready constituted there is no provision for the men so enlisted to 
be attached to any particular organization of the Regular Army. I 
am therefore of opinion that the men who reenlist or enlist in the 
Army Reserve form a class different from the furloughed soldiers 
in that they are not regarded as in any sense belonging to any or- 
ganization, but simply to the unorganized Army Reserve. I am fur- 
ther of opinion that the term "furloughed soldiers" in the seventh 
proviso refers only to those whose enlistments have not yet expired— 
that is, to those who have been furloughed and transferred to the 
Reserve as authorized in the second and fourth provisos, and does not 
include those who have reenlisted or enlisted in the Army Reserve; 
but the effect of the following provisions, namely, " and any enlisted 
man who shall have reenlisted in the Army Reserve shall receive dur- 
ing such service the additional pay now provided by law for the 
soldiers of his arm of the service in their second enlistment period. 
Upon reporting for duty and being found physically fit for service, 
they shall receive a sum equal to $5 a month for each month during 
which they shall have belonged to the Reserve, as well as the actual 
cost of transportation and subsistence from their homes to the places 
at Vidiich they may be ordered to report for duty under such sum- 
mons," is to indicate that not only " furloughed soldiers who belong 
to the Reserve" but also those who shall have "reenlisted" or "en- 
listed" in the Reserve are to be subject to be summoned by the 
President for active duty " in the event of actual or threatened hos- 
tilities * * * when so authorized by Congress," and that when 
so summoned all will be under like obligation to report and serve 
in obedience to the summons. 

5. In support of these views it may be observed that the seventh 
proviso appears to distinguish between soldiers covered by the term 
" all furloughed soldiers who belong to the Army Reserve " and those 
who have reenlisted " in the Army Reserve," in that the former 
" during the continuance of their service with such organizations 
* * * shall receive the pay and allowances authorized by law 
for soldiers serving therein, and that the latter " shall receive dur- 
ing such service the additional pay now provided by law for the 
soldiers of his arm of the service in their second enlistment period." 
While, therefore, the term " furloughed soldiers " appears to be lim- 
ited to those who have been furloughed to the Reserve, Avithout dis- 
charge, after three or four years' service, the provision respecting 
those who have " reenlisted in the Army Reserve," that they shall 
receive '"'"duHng such service the additional pay now provided by law 
for the soldiers in his arm of the service in their second enlistment 
period," together with the concluding sentence providing for a 
bounty for members of the Reserve when reporting for duty " under 
such svmmons,'''' clearly indicates a legislative intent that not only 
furloughed soldiers but all the members of the Army Reserve as 
well should be liable to be summoned under similar conditions. It 
may be further added that, while the statutory provision for sum- 
moning the Reserves is not very definite and complete, the summon- 
ing of the Reserves depends upon future authority from Congress, 
and such authority, when given, will include all the necessary inci- 
dent powers to make the Reserve an effective body. 



80 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

G. I would therefore ans^Yer the three questions submitted in the 
accompanying niemonmdum as follows: 

(1) That the fourth proviso should be regarded as only a partial 
definition of the "Army Reserve," and that the section as a whole 
indicates that the Army Reserve includes, along with those fur- 
loughed at the end of four years, those furloughed on their applica- 
tions at the end of three years, together with those who reenlist or 
enlist "in the Army Reserve"' as authorized in the section. 

(2) That the men who enlist or reenlist in the Army Reserve 
form a class different from the Army Reserve composed of fur- 
longhed soldiers only in respect to the fact that they do not enter 
the Reserve by way of furlough from particular organizations, and 
that the provision for their pay when summoned for active duty is 
somewhat different from that of soldiers furloughed to the Army 
Reserve, but that they are under the same obligations to report for 
service when summoned by the President, in the event of actual or 
threatened hostilities, when so authorized by Congress. 

(3) That the term "furloughed soldiers" (line 42, p. 25, Public, 
No. 338) includes those who have been furloughed to the Reserve 
at the end of three or four years' service and wdiose enlistments have 
not yet expired, but does not include those who have reenlisted or 
enlisted in the Army Reserve. However, as stated in the answer to 
the second question, all classes of the Reserve are under like obliga- 
tions to report for duty when summoned under authority of Con- 
gress as specified in the statute. 

E. H. Crowder, 
Judge Advocate General. 

[Second indorsement.] 

War Department, 
Judge Advocate General's Office, 

August 28, 1912. 
To The Adjutant General. 

It is clear that the Quartermaster Corps came into legal existence 
August 24, 1912, the date of the approval of the act which carried 
the provision for consolidation of the Quartermaster's, Subsistence, 
and Pay Departments. Thereafter no details to the grade of cap- 
tain in said corps could be made or could become effective until the 
number of officers in that grade of said corps should be reduced from 
the present consolidated strength to 102. It follows that the detail 
of Capt. Smith, by paragraph 27, Special Orders, No. 177, dated 
July 29, 1912, to fill a vacancy August 31, 1912, is not operative under 
the conditions which have obtained since the enactment of the legis- 
tion for the consolidation above referred to. The period of. 60 days 
which is provided for in the law for putting into effect the provisions 
of the act respecting consolidation is plainly for the purpose of or- 
ganizing the administration of the new corps, but its effect is limited 
to that, and it does not postj^one the creation of a new corps to a date 
later than the approval of the act. 

E. H. Crowder, 
Judge Advocate General. 



digest of opinions of the judge advocate geneeal. 81 

September 3, 1912. 
From : The Judge Advocate General. 
To: The Chief of Staff. 
Subject: Construction of section 3, act of August 24, 1912. 

1. I have before me for remark a memorandum dated August 28, 
1912, in which Maj. Gen. Aleshire, as Chief of the Quartermaster 
Corps, outlines certain steps which he desires to have taken at once 
with a view to carrying into effect the provisions of section 3 of the 
Army appropriation act approved August 24, 1912. That section, 
after providing for the consolidation of the office establishments of 
the Quartermaster General, the Commissary General, and the Pay- 
master General of the Army into a single bureau of the War De- 
partment, to be known as the Quartermaster Corps, and for the con- 
solidation of the Quartermaster's, Subsistence, and Pay Departments 
of the Army into a single corps, to be known as the Quartermaster 
Corps of the Army, continues: 

" And provided further, That for the purpose of carrying into 
effect the provisions of this section the President is hereby author- 
ized to appoint, by and with the advice and consent of the Senate, 
the Chief of the Quartermaster Corps herein provided for immedi- 
ately upon the passage of this act, and it shall be the duty of the said 
chief, under the direction of the President and the Secretary of War, 
to put into effect the provisions of this section not less than sixty 
days after the passage of this act." 

2. While there may be an idiomatic use of the phrase "not less 
than," which in connection with the preceding portions of the sec- 
tion might support the view tliat the proviso quoted above amounts 
to a legislative mandate to complete the consolidation within the 
60-day period, regard for the fact that the Secretary of War, under 
date of March 29, 1912, addressed to the chairman of the Senate 
Committee on Military Affairs a recommendation that " provision 
be made that a period of two months shall elapse between the ap- 
proval of the act providing for the consolidation and the date upon 
which the consolidation shall be put into effect"; that this recom- 
mendation was followed by the introduction of a proviso substan- 
tiallv identical with the one here under consideration (Conference 
Kept. No. 762, May 27, 1912, on H. E. 18956) ; that while some of 
the language employed in the proviso as reported by the conference 
committee on Mav 27 was subsequently substituted by other language 
(Conference Report of Aug. 21, 1912, on H. R. 25531), the clause 
"to put into effect the provisions of this section not less than sixty 
days after the passage of this act " was left unchanged ; and that the 
proviso, when interpreted in accordance with the ordinary and literal 
signification of the terms used therein, may be construed as a re- 
sponse to and compliance with the request of the Secretary of War 
for a period of postponement, constrains me to take the view that 
the proviso should be construed as decreeing a postponement of the 
administrative execution of the consolidation for a period of 60 days, 
during which period the principal steps necessary to make the new 
office establishment and the new corps going concerns are to be 
taken, and that the administration of the affairs of the offices and 

93668°— 17 6 



82 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

departments consolidated by the act may not be assumed by the new 
bureau and corps until 60 days after the approval of the act. 

3. The acceptance of this view does not imply that the 60-day 
period is to be one of inaction in respect of the consolidation. On 
the contrary, every effort should be made in the meantime to assure 
the beginning of efficient administration under the provisions of the 
consolidation section at the close of the 60-day period or as soon 
thereafter as possible. To that end officers of the old Subsistence 
and Pay Departments may be directed to cooperate with the Chief 
of the Quartermaster Corps in making necessary preparations, and 
orders may issue prescribing the course of administration under the 
section and directing that the same be put into administrative opera- 
tion upon a given date, which should, of course, be at the close of 
the 60-day period or as soon thereafter as practicable. 

4. Consideration of the entire section leads to the view that in 
determining the point of time at which each of the several provi- 
sions of the section became effective or may become effective a dis- 
tinction is to be observed between provisions of a nature to become 
effective by mere operation of law and those which require affirma- 
tive executive or administrative action to give them effect. Provi- 
sions falling in the first class became effective immediately upon the 
approval of the act, while those of the second class may not be placed 
in operation until 60 days after the approval of the act, except in 
so far as the final proviso of the section requires or authorizes execu- 
tive action prior to the expiration of the 60-day period. That pro- 
viso authorized and required the immediate appointment of the 
Chief of the Quartermaster Coi'ps, a step that has already been taken, 
and further authorizes and requires prompt executive preparation, 
to the end that the administration of affairs may be begun by the 
consolidated bureau and corps 60 days after the approval of the act 
or as soon thereafter as practicable. 

5. The provision changing the official designations of officers of the 
Quartermaster's, Subsistence, and Pay Departments does not require 
the aid of affirmative executive action to make the change effective. 
That provision therefore took effect upon approval of the act. It is 
therefore proper to employ the new designations in respect of all 
officers of the old departments named above. However, as the affairs 
of the old departments must for a period of not less than 60 days 
after August 24, 1912, continue to be administered by the officers in 
charge and under the law in effect prior to the date mentioned, pos- 
sible confusion and delay in the transaction of public business will 
probably be avoided by continuing the use, parenthetically, of the old 
official designations in addition to the new ones until administration 
by the consolidated corps takes the place of administration by the 
three separate departments included in the consolidation. 

6. If before the expiration of the 60-day period vacancies should 
occur among the noncommissioned staff officers hei-etofore known 
as post quartermaster sergeants or post commissary sergeants, it 
Avould not be necessary to invoke the new law in order to find au- 
thority for making appointments to fill such vacancies, except in so 
far as the official designations of the positions are concerned. It is 
therefore my opinion that during the period in question such vacan- 
cies may be filled in conformity with the law and regulations hereto- 



DIGEST OF OPIlSriONS OF THE JUDGE ADVOCATE GENERAL. 83 

fore in force, except that the appointees would be designated as 
"quartermaster sergeants " instead of as " post quartermaster ser- 
geants " or " post commissary sergeants." The same reasoning would 
apply to vacancies among the clerks heretofore known as Army pay- 
masters' clerks, but who are now to be designated as " pay clerks." 

7. With reference to the provision which authorizes the advance- 
ment to the grade of major of not to exceed six captains holding 
commissions m the Quartermaster Corps it is to be noted that the 
advancement thus authorized does not take place by operation of 
law. Affirmative executive action is a condition precedent to the 
advancement. The advancement of these officers is not a necessary 
element or incident of executive preparation to put the section into 
administrative operation at the expiration of the 60-day period. 
Furthermore, the specific authorization for the immediate appoint- 
ment of the Chief of the Quartermaster Corps, in connection with 
what follows in the same proviso, impliedly forbids for a period of 
not less than 60 days other appointments the authority for which 
is found only in the section providing for the consolidation. The 
advancement of the captains, referred to, must therefore, in my opin- 
ion, be deferred until 60 days after the approval of the act. 

8. The section also provides that no details to fill vacancies in the 
grade of colonel in the Quartermaster Corps shall be made until the 
number of officers of that grade shall have been reduced by a specified 
number; prescribes a similar rule respecting vacancies in the grades 
of lieutenant colonel, major, and captain, and then continues: 

" Whenever the separation of a line officer of any grade and arm 
from the Quartermaster Corps shall create therein a vacancy that 
under the terms of this proviso can not be filled by detail, such sep- 
aration shall operate to make a permanent reduction of one in the 
total number of officers of said grade and arm in the line of the 
Army as soon as such reduction can be made without depriving any 
officer of his commission." 

While it is true that the occurrence of vacancies might be hastened 
by executive action, the nimiber of vacancies necessary to effect the 
prescribed reduction is bound to develop in the course of time by 
reason of expirations of the statutory term of service under detail 
in a staff corps or department, retirements by operation of law, 
deaths, etc. As these provisions require no affirmative executive 
action under authority of the new law to give them effect, but con- 
stitute an inhibition upon executive action under specified circum- 
stances, I am of the opinion that said provisions became effective 
upon the approval of the act, and that no details to fill vacancies in 
any grade in the Quartermaster Corps may be made or permitted to 
become effective until after the required reduction in such grade shall 
have been accomplished. Details to the old Quartermaster's, Sub- 
sistence, and Pay Departments may of course no longer be made or 
permitted to become effective. 

9. After the consolidation becomes administratively effective offi- 
cers now bonded as officers of the Quartermaster's, Subsistence, or 
Pay Departments may be called upon to perform duties beyond the 
scope of their present duties, or to handle money or property that 



84 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

would not have come into their hands under the law in force at the 
time their bonds were secured. It is accordingly recommended that 
steps be taken to assure that before entering upon his duties under 
the consolidation each oflicer of the new corps shall be bonded as such. 
10. The remarks contained in paragraph 6, siq^ra, are in response 
to a memorandum dated August 30, 1912, from the Chief of the 
Quartermaster Corps, and a memorandum of the same date from the 
office of the Commissary General. Those papers, as well as the 
paper mentioned in paragraph 1, supra^ are returned herewith. 

E. H. Crowder, 
Judge Advocate General. 

[Third indorsement.] 

War Department, 
Judge Advocate General's Office, 

Octoler ^, lOm. 
To The Adjutant General. 

1. In an indorsement dated September 13, 1912, with reference to 
a request made under date of September 10, 1912, by Capt. Frederick 
H. Pomroy, theretofore commissioned as captain in the Subsistence 
Department, to be promoted to the grade of major in the Quarter- 
master Corps, vice Maj. Beecher B. Ray, paymaster, promoted on 
August 27, 1912, to be deputy paymaster general, with the rank of 
lieutenant colonel, from February 16, 1912, this office said in part : 

" 5. The memorandum accompanying the request for decision 
raises the further question of whether Capt. Pomroy could be pro- 
moted to the Eay vacancy ' subject to examination ' under the provi- 
sions of section 32 of the act of February 2, 1901. I am clearly of 
the opinion that he may not be so promoted. That section gives 
this right only when exigencies of the service require an officer to 
remain absent from any place where the examining board could be 
convened, but this condition is not shown to exist in the case of Capt. 
Pomroy." (6-224.) 

2, The papers in reference on September 13," 1912, have been re- 
ferred to this office for further remark in connection with a letter 
from Capt. Pomroy, in which he states, under date of September 18, 
1912, that he was ordered to Chicago on April 2, 1912, for exami- 
nation for promotion; that the medical members of the board held 
that he was incapacitated for active service by reason of disability 
incident thereto and would probably have to be retired, but in view 
of the possibility of his recovery they recommended that he be sent 
to some general hospital for observation and treatment; and that at 
the Walter Reed General Hospital the medical officers, after more 
than four months' observation and treatment of Capt. Pomroy, rec- 
ommended that he be given four months' sick leave, on the theory 
that the physical disability from which he was suffering was not 
organic and that he would entirely recover therefrom and be fit for 
active service. It is understood that Capt. Pomroy is at present on 
sick leave, granted in view of the conditions just stated. He urges 
that these facts are sufficient to warrant his promotion subject to 
examination. None of these facts appeared in the papers before 
me when the indorsement of September 13, 1912, was prepared. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 85 

3. Section 32 of the act of February 2, 1901 (31 Stat, 756), pro- 
vides : 

" That when the exigencies of the service of any officer who would 
be entitled to promotion upon examination require him to remain 
absent from any place where an examining board could be convened 
the President is hereby authorized to promote such officer, subject 
to examination, and the examination shall take place as soon there- 
after as practicable. If upon examination the officer be found 
disqualified for promotion he shall, upon the approval of the pro- 
ceedings by the Secretary of War, be treated in the same manner as 
if he had been examined prior to promotion." 

4. In the papers before me on September 13 there was nothing to 
show the existence of an exigency of the service of Capt. Pomroy 
which would prevent him from appearing before an examining 
board. If the case under consideration were one of first impression, 
I should be strongly inclined to take the view that the facts now 
shown to exist in Capt. Pomroy's case are not sufficient to bring it 
within the terms of section 32 of the act of February 2, 1901, so as to 
authorize his promotion subject to examination. However, my 
predecessor on June 29, 1908, in construing section 32, supra^ said : 

" Wlien an officer is suffering from wounds, disease, or sickness 
which require him to remain absent from any place where an exam- 
ining board could be convened, or, what is the same thing, if such 
temporary disability is such as to prevent him, in the opinion of the 
})roper medical authority, from appearing at the place designated 
in appropriate military orders for his examination, clearly an exi- 
gency of the service exists which makes it impossible for him to so 
appear, and the statute becomes fully applicable to his case. 

" The wrong for which a remedy is sought * * * consists in 
the difficulty which has been encountered in the expeditious advance- 
ment of officers who have been found qualified for promotion, due to 
the fact that an officer whose right to advancement had accrued was 
unable, on account of sickness, to undergo the examination required 
by law. It is believed that the enactment above cited applies an 
adequate remedy to the case presented. 

" It is therefore the opinion of this office that where an officer 
whose right to promotion has accrued in the operation of the act of 
October 1, 1890, is obliged by reason of siclaiess to remain absent 
from the place where a board for his examination has been con- 
vened by the President, such sickness, when verified by the proper 
medical authority, constitutes an exigency of the service within the 
meaning of section 32 of the act of February 2, 1901, and that such 
officer may therefore be lawfully advanced to the next highest grade 
subject to examination, which shall take place as soon thereafter as 
practicable * * *." (C, 23096.) 

Furthermore, in the preceding indorsement, dated September 21, 
1912, The Adjutant General's Office says that " It has been the ad- 
ministrative practice to construe the provisions of section 32 of the 
act of February 2, 1901, providing for promotion subject to ex- 
amination, as covering the cases of officers unable to appear before 
the examining board in due season by reason of physical disability 
or absence abroad, etc., and where delay in the promotion of an officer 
would block for a considerable period the promotion of his juniors, 
whose right to promotion had already accrued " ; and then cites a 



86 DIGEST OF OPINIONS OP THE JUDOE ADVOCATE GENERAL. 

recent case in point— that of Lieut. Felker, of the Cavalry, who ap- 
pears to have been promoted, subject to examination, while on sick 
leave. 

5. In view of the opinion of June 29, 1908, swpra^ which no doubt 
had the approval of the Secretary of War, and of the administrative 
practice mentioned in the indorsement of September 21, 1912, from 
The Adjutant General's Office, I am constrained to express the opin- 
ion that under the conditions shown to exist in Capt. Pomroy's case 
he may, if those conditions still exist when his right to promotion 
shall have accrued, be promoted, subject to examination as provided 
for in section 32 of the act of Februai^ 2, 1901. 

6. Capt. Pomroy's request of September 10 raised the question as 
to whether an officer heretofore commissioned in the Subsistence De- 
partment may, under the provisions of section 3 of the act of August 
24, 1912 (Public, No. 338), be promoted to a vacancy in the next 
higher grade occasioned in the Quartermaster Corps by the promo- 
tion of an officer theretofore holding a commission in the Pay 
Department, and specifically whether or not Capt. Pomroy, being the 
senior captain on the permanent list of officers of the departments 
included in the consolidation prescribed by said section 3, may be 
promoted to the grade of major in the Quartermaster Corps to fill a 
vacancy occasioned by the promotion of Maj. Beecher B. Ray, pay- 
master, to the grade of lieutenant colonel, that promotion having 
been made on August 27, 1912, with rank from February 16, 1912. 
There being no captain on the permanent list of officers of the former 
Pay Department, it was held that Capt. Pomroy may be promoted 
to the vacancy in question, but that the right to promotion can not 
be held to antedate the approval of the act providing for the estab- 
lishment of the Quartermaster Corps August 24, 1912. (J. A. G. O., 
6-224, Sept. 13, 1912.) Upon further consideration I have arrived 
at the conclusion that the right of an officer commissioned as a 
captain in the Subsistence Department to be promoted to the grade of 
major in the Quartermaster Corps, under the conditions stated, not 
only can not antedate the approval of the act of August 24, 1912, but 
can not be held to antedate the time at which section 3 of that act 
becomes administratively effective. 

7. The concluding provision of the section referred to in the pro- 
ceding paragraph reads as follows: 

'■'■And provided furtlier^ That for the purpose of carrying into 
effect the provisions of this section the President is hereby authorized 
to appoint, by and with the advice and consent of the Senate, the 
Chief of the Quartermaster Corps herein provided for immediately 
upon the passage of this act, and it shall be the duty of the said 
chief, under the direction of the President and the Secretary of War, 
to put into effect the provisions of this section not less than sixty 
days after the passage of this act." 

Concerning that section this office, under date of September 3, 
1912, in an opinion which received the approval of the Acting 
Secretary of War, remarked in part as follows: 

" In determining the point of time at which each of the several 
provisions of the section became or may become effective, a distinc- 
tion is to be observed between provisions of a nature to become effec- 
tive by mere operation of law and those which require affirmative 
executive or administrative action to give them effect. Provisions 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 87 

falling in the first class become effective immediately upon the 
approval of the act, while those of the second class may not be placed 
in operation until 60 days after the approval of the act, except in so 
far as the final proviso of the section requires or authorizes executive 
action prior to the expiration of the 60-day period. 

******* 

" With reference to the provision which authorizes the advance- 
ment to the grade of major of not to exceed six captains holding 
commissions in the Quartermaster Corps, it is to be noted that the 
advancement thus authorized does not take place by operation of 
law. Affirmative executive action is a condition precedent to the 
advancement. The advancement of these officers is not a necessary 
element or incident of executive preparation to put the section into 
administrative operation at the expiration of the 60-day period. 
Furthermore, the specific authorization for the immediate appoint- 
ment of the Chief of the Quartermaster Corps in connection with 
what follows in the same proviso impliedly forbids, for a period of 
not less than 60 days, other appointments the authority for which 
is found only in the section providing for the consolidation. The 
advancement of the captains referred to must therefore, in my 
opinion, be deferred until 60 days after the approval of the act." 
(6-224.) 

8. The considerations leading to the view that the six captains for 
the advancement of which special provision is made in the act pro- 
viding for the establishment of the Quartermaster Corps may not 
be advanced in grade within the 60-day period immediately follow- 
ing the approval of the act, or until section 3 of the act is put into 
administrative operation, have equal force in precluding the pro- 
motion of a captain of the Subsistence Department to fill a vacancy 
occasioned in the grade of major by the promotion or retirement 
of a major in the old Pay or Quartermaster's Department. Capt. 
Pomroy, for example, has no present right to promotion to the 
grade of major as an officer of the Subsistence Department, there 
being no vacancy above the grade of captain in that department. 
The law in. force prior to August 24, 1912, can not therefore be in- 
voked as warrant for Capt. Pomroy's promotion at this time. His 
promotion could take place only by virtue of section 3 of the act 
of August 24, 1912, but the provisions of that section can, at the 
present time, be invoked as authority for administrative action only 
in so far as such administrative action is necessary by way of 
preparation to put the entire section into administrative operation 
on or after the expiration of 60 days after the approval of the act, 
and Capt. Pomroy's promotion is not a necessary element or inci- 
dent of such preparation. 

9. The administration of the affairs of the old Quartermaster's,- 
Subsistence, and Pay Departments is now proceeding under the 
law in force prior to the approval of the act of August 24, 1912, 
except in so far as the official designations of officers belonging to 
those departments may have been changed by that act. Capt. Pom- 
roy, as an officer of the old Subsistence Department, is invested with 
certain powers and duties. Should he be appointed a major in the 
Quartermaster Corps, he would vacate his present office and cease 
to be vested with the power to perform the duties of that office. 



88 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

The Quartermaster Corps, as such, has not as yet become vested 
with administrative powers and duties, and with no Avarrant for 
official action beyond an appointment in the Quartermaster Corps 
this officer would, in my opinion, be without legal powers and 
duties until section 3 is put into administrative operation. It can 
not be supposed that Congress intended to bring about such a con- 
dition of affairs. 

10. I am accordingly of the opinion that the promotion of Capt. 
Pomroy to the grade of major, vice Ray, as well as the advance- 
ment of the captains for which special provision is made in section 
3 of the act of August 24, 1912, must be deferred until the date 
upon which said section 3 is _put into administrative operation, and 
that the rank of said officers as majors in the Quartermaster Corps 
can not antedate the latter date. The same reasoning and the same 
conclusions apply in the case of a promotion to fill the vacancy 
caused by the retirement on September 11, 1912, of Maj. Daniel W. 
Arnold of the old Quartermaster's Department. 

E. H. Crowder, 
Judge Advocate General. 



October 8, 1912. 
From: The Judge Advocate General. 
To: The Chief of Staff. 

Subject: Absorption of officers, pursuant to section 3 of the act of 
August 24, 1912. 

1. I have before me a memorandum in which, under date of October 
7, 1912, the Acting Chief of Staff requests an opinion as to the date 
upon which that portion of the recent legislation consolidating the 
Quartermaster's, Subsistence, and Pay Departments which requires 
the absorption of a certain number of officers became or shall become 
effective. 

2. The legislation referred to is found in section 3 of the act of 
August 24, 1912 (Public, No. 338), which, in so far as material to 
the present inquiry, reads as follows : 

" Sec. 3. * * * The Quartermaster's, Subsistence, and Pay De- 
partments of the Army are hereby consolidated into and shall here- 
after be known as the Quai'termaster Corps of the Army. The offi- 
cers of said departments shall hereafter be known as officers of said 
corps and by the title of the rank held by them therein, and, except 
as hereinafter specifically provided to the contrary, the provisions 
of sections 26 and 27 of the act of Congress approved February 2, 
1901, * * * are hereby extended so as to apply to the Quarter- 
master Corps in the manner and to the extent to which they now 
apply to the Quartermaster's, Subsistence, and Pay Departments, 
* * *: Provided further.. That no details to fill vacancies in tlie 
grade of colonel in the Quartermaster Corps shall be made until the 
number of officers of that grade shall have been reduced by three, 
and thereafter the number of officers in that gi"ade shall not exceed 
twelve; and no details to fill vacancies in the grade of lieutenant 
colonel in the Quartermaster Corps shall be made until the number 
of officei\s of that gi-ado shall have been reduced by three, and there- 
after the number of officers of that grade shall not exceed eighteen ; 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAI.. 89 

and no details to fill vacancies in the grade of major in the Quarter- 
master Corps shall be made until the number of officers of that grade 
shall have been reduced by nine, and thereafter the number of officers 
in said grade shall not exceed forty-eight; and no details to fill 
vacancies in the grade of captain in the Quartermaster Corps shall 
be made until after the number of officers of that grade shall be 
reduced by twenty -nine, and thereafter the number of officers of said 
grade shall not exceed one hundred and tAvo ; and whenever the sep- 
aration of a line officer of any gi-ade and arm from the Quartermaster 
Corps shall create therein a vacancy that, under the tenns of this 
proviso, can not be filled by detail, such separation shall operate to 
make a permanent reduction of one in the total number of officers of 
said grade and arm in the line of the Ai^my as soon as such reduction 
can be made without depriving any officer of his commission: 
* * * A7id provided furtJier^ That for the purpose of carrying 
into effect the provisions of this section the President is hereby au- 
thorized to appoint, by and with the advice and consent of the Senate, 
the Chief of the Quartermaster Corps herein provided for imme- 
diately upon the passage of this act, and it sliall be the duty of the 
said chief, under the direction of the President and the Secretary 
of War, to put into effect the provisions of this section not less than 
sixty days after the passage of this act." 

3. From the foregoing it appears that ultimately the authorized 
commissioned strength of the Quartermaster Corps in the grades from 
colonel to captain, both inclusive, is to equal the aggregate commis- 
sioned strength heretofore authorized in those grades for the Quar- 
termaster's, Subsistence, and Pay Departments, less the following 
reductions, viz: Two colonels, 2 lieutenant colonels, 8 majors, and 28 
captains; and that these reductions are to be effected by the cessation 
of details — details of the class made pursuant to the provisions of 
sections 26 and 27 of the act of February 2, 1901. 

4. Concerning section 3 of the act of August 24, 1912, this office, 
under date of September 3, 1912, in an opinion which received the 
approval of the Acting Secretary of War, remarked, in part, as 
follows : 

" In determining the point of time at which each of the several 
provisions of the section became or may become effective, a distinction 
is to be observed between provisions of a nature to become effective 
by mere operation of law and those which require affirmative execu- 
tive or administrative action to give them effect. Provisions falling 
in the first class became effective immediately upon the approval of 
the act, while those of the second class may not be placed in opera- 
tion until 60 daj'^s after the approval of the act, except in so far as 
the final proviso of the section requires or authorizes executive action 
prior to the expiration of the 60-day period. * * * 55 (64-250.) 

In the same opinion the proviso requiring the temporary cessation 
of details in order to effect the reductions mentioned above was dis- 
cussed in the following terms: 

"* * * While it is true that the occurrence of vacancies might 
be hastened by executive action, the number of vacancies necessary 
to effect the prescribed reduction is bound to develop in the coui*se 
of time by reason of expirations of the statutory term of service un- 
der detail in a staff' corps or department, retirements by operation 



90 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

of law, deaths, etc. As these provisions require no affirmative execu- 
tive action under authority of the new law to give them effect, but 
constitute an inhibition upon executive action under specific circum- 
stances, I am of the opinion that said provisions became effective 
upoii the approval of the act, and that no details to fill vacancies in 
any grade in the Quartermaster Corps may be made or permitted to 
become effective until after the required reduction in such grade 
shall have been accomplished. Details to the old Quartermaster's, 
Subsistence, and Pay Departments may, of course, no longer be 
made or permitted to become effective." 

In an earlier opinion, dated August 28, 1912, this office held that 
the Quartermaster Corps provided for by section 3 of the act of 
August 24, 1912, came into legal existence on the date of the ap- 
proval of the act, to the extent that no detail thereto in the grade of 
captain may be made or permitted to become effective until the num- 
ber of captains in the consolidated corps shall have been reduced 
below 102. This view was expressed in answer to an inquiry as to 
v/hether paragraph 27, Special Orders, No. 1T7, War Department, 
July 29, 1912, detailing a captain of infantry to fill a vacancy to 
occur on August 31, 1912, in one of the three staff departments 
affected by the consolidation should be permitted to stand — the an- 
swer being that in view of the new legislation and of the fact that 
the number of captains in the consolidated corps exceeded 102, the 
order referred to must be held to be inoperative. (64—250.) 

5. In terms the section providing for the establishment of the 
Quartermaster COrps speaks from the date of its approval, subject 
to the exceptions indicated in the concluding proviso of the section. 
As the provision prohibiting details until certain reductions shall 
have been accomplished requires no affirmative executive action to 
make the statutory direction effective, I am of the opinion, as indi- 
cated above, that said provision is not within the purview of the 
final proviso of the section, and therefore became effective at once 
upon the approval of the act — that is, on August 24, 1912. 

6. Section 27 of the act of February 2, 1901 (31 Stat., 755), which 
is specifically referred to in the section here under consideration, 
reads as follows: 

" That each position vacated by officers of the line, transferred to 
any department of the staff for tours of service under this act, shall 
be filled by promotion in the line until the total number detailed 
equals the number authorized for duty in each staff department. 
Thereafter vacancies caused by details from the line to the staff shall 
be filled by officers returning from tours of staff duty. If under the 
operation of this act the number of officers returned to any particu- 
lar arm of the service at any time exceeds the number authorized by 
law in any grade, promotions to that grade shall cease until the 
number has been reduced to that authorized." 

7. It thus appears that in the ordinary course of administration, 
when the commissioned strength of line and staff organizations is 
being maintained at the maximum authorized by law, an officer re- 
lieved from duty under detail to one of the staff departments be- 
comes for the time being a supernumerary in his branch and grade 
unless another officer is at the same time detailed therefrom for duty 
in a staff department. In the present case when an officer is relieved 
from detail in any one of the three departments merged into the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 91 

Quartermaster Corps no detail, either to the old department or to 
the new corps, can be made until the required reductions shall have 
been accomplished. The result is that the officer so relieved becomes 
a supernumerary officer in the branch and grade in which he is com- 
missioned ; and under the terms of the last sentence of section 27 of 
the act of February 2, 1901, promotions to that grade and branch 
must cease until the number of officers therein has been reduced to 
the number authorized by law. As the prohibition against making 
details became effective on August 24, 1912, the concluding provision 
of section 27 of the act of February 2, 1901, became automatically 
operative at the same time in respect of all cases arising through the 
relief of officers who have been under detail in one of the three 
departments merged into the new corps and who can not be replaced 
by means of new details until tlie prescribed reductions shall have 
been effected. 

8. By way of specific answer to the question presented in the 
memorandum referred to in paragraph 1 hereof, I have to say that 
in my opinion that part of section 3 of the act of August 24, 1912, 
which requires the absorption of a certain number of officers ren- 
dered surplus by the merging of the Quartermaster's, Subsistence, 
and Pay Departments into the Quartermaster Corps became effective 
on the date of the approval of the act — ^that is, on August 24, 1912. 

E. H. Crowdek, 
Judge Advocate General. 

[Second Indorsement.] 

War Department, 
Judge Advocate General's Office, 

October 16, 1912. 
To The Adjutant General : 

1. In the foregoing letter, dated October 10, 1912, the Chief of the 
Quartermaster Corps requests information "As to the proper pro- 
cedure in filling vacancies in the position of quartermaster sergeant 
after November 1, the date fixed for the consolidation of the Quarter- 
master's, Subsistence, and Pay Departments to become effective." 

2. The consolidation thus referred to is prescribed by section 3 of 
the Army appropriation act of August 24, 1912 (Public, No. 338). 
That section, in so far as it is material to the present inquiry, reads 
as follows: 

" That the office establishments of the Quartermaster General, the 
Commissary General, and the Paymaster General of the Army are 
hereby consolidated and shall hereafter constitute a single bureau 
of the War Department, which shall be known as the Quartermaster 
Corps, and of which the Chief of the Quartermaster Corps created by 
this act shall be the head. The Quartermaster's, Subsistence, and 
Pay Departments of the Army are hereby consolidated into and 
shall hereafter be known as the Quartermaster Corps of the Army. 
* * * The noncommissioned officers now known as post quarter- 
master sergeants and post commissary sergeants shall hereafter be 
known as quartermaster sergeants; * * * ^^^ each of said non- 
commisisoned officers * * * shall continue to have the pay, 
allowances, rights, and privileges now allowed him by law •. * * * 



92 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

Provided further^ That such duty or duties as are now required by 
law to be performed by any officer or officers of the Quartermaster's, 
Subsistence, or Pay Departments shall hereafter be performed by 
such officer or officei-s of the Quartermaster Corps as the Secretary of 
War may designate for the purpose ; * * *." 

The qualifications and methods of selection and appointment of 
post commissay sergeants and posts quartermaster sergeants have 
heretofore been determined by the following statutory provisions, 
viz : 

" The Secretary of War is authorized to select from the sergeants 
of the line of the Army who shall have faithfully served therein five 
years, three years of which in the grade of noncommissioned officers, 
as many commissary sergeants as the service may require, not to ex- 
ceed one for each military post or place of deposit of subsistence 
supplies, whose duty it shall be to receive and preserve subsistence 
supplies at the posts, under the direction of the proper officers of the 
Subsistence Department, and under such regulations as shall be 
prescribed by the Secretary of War. * * *." (Sec. 1142, Rev. 
Stat.) 

" That the Secretary of War is authorized to appoint, on the recom- 
mendation of the Quartermaster General, as many post quarter- 
master sergeants, not to exceed eighty, as he may deem necessary for 
the interests of the service, said sergeants to be selected by examina- 
tion from the most competent enlisted men of the Army who have 
served at least four years and whose character and education shall fit 
them, to take charge of public property and to act as clerks and 
assistants to post and other quartermasters. Said post quartermaster 
sergeants shall, so far as practicable, perform the duties of store- 
keepers and clerks in lieu of citizen employees * * *." (Act of 
July 5, 1884, 23 Stat., 109.) 

The designation of the commissary sergeants provided for in sec- 
tion 1142, Revised Statutes, was changed to post commissary 
sergeants and those noncommissioned officers included in the Subsist- 
ence Department by the terms of section 17 of the act of February 2, 
1901, and the authorized number of post quartermaster sergeants was 
incorporated into the Quartermaster's Department by section 16 of 
the same act (31 Stat., 751 and 752). The first section of the Army 
appropriation act of August 24, 1912, supra, carries approioriations 
"for pay of two hundred post quartermaster sergeants, at forty-five 
dollars per month each, * * *," and "for pay of two hundred 
and seven post commissary sergeants, at fortv-five dollars per month 
each, * * *." 

3. The act of August 24, 1912, does not specifically provide for the 
repeal of any portion of section 1142, Revised Statutes, or of the act 
of July 5, 1884, neither does the former act in terms prescribe the 
(jualifications and methods of selection and appointment of quarter- 
master sergeants in the Quartermaster Corps. I have discovered no 
such inconsistency between the new legislation and the legislation 
relating to the qualifications and methods of selection and appoint- 
ment of post quartermaster sergeants and post commissary sergeants as 
would justify me in holding that the latter is repealed by implication. 
On the contrary, as after the consolidation becomes effective quarter- 
master sergeants will be liable to be called upon to perform the duties 
and assume the responsibilities of either or both of the old classes of 



DIGEST OF OPINIONS OP THE JUDOE ADVOCATE GENERAL. 93 

noncommissioned officers, I think it may be fairly assumed that the 
legislative intention was that new appointees to the position of quar- 
termaster sergeant in the Quartermaster Corps should meet all the 
requirements of the laws designed to secure the selection of properly 
qualified post quartermaster sergeants and post commissary ser- 
geants, respectively. This constrliction would continue to give effect 
to the old legislation enacted for the purpose of securing competent 
noncommissioned officers in the supply departments merged into the 
new corps, and would be in harmony with the rule that repeals by 
implication are not favored and will not be held to exist if there is 
any other reasonable construction. 

4. For the reasons stated I am led to the opinion that after the 
consolidation recently prescribed becomes effective section 1142 of 
the Kevised Statutes and the act of July 6, 1884, supra^ should be 
given effect in respect of the qualifications and methods of selecting 
new appointees to the position of quartermaster sergeant in the 
Quartermaster Corps b}^ observing all requirements common to both 
statutes or found in one with no corresponding provision in the other 
and by requiring the higher qualification and observing the more 
restricted field of selection when the two statutes contain different 
provisions upon the subject. 

E. H. Crowder, 
Judge Advocate General. 

[Second indorsement.] 

War Department, 
Judge Advocate General's Office, 

September 11^^ 191^. 
To the Secretary of War : 

1. The Chief of the Quartermaster Corps submits his views rela- 
tive to the construction of section 4 of the Army appropriation act 
of August 24, 1912, providing for the substitution in large measure 
of an enlisted force for the Quartermaster Corps to replace the 
civilians now employed in that corps and the enlisted men now on 
detail on extra duty in said corps, with request that the opinion of 
this office be obtained regarding certain provisions thereof. 

2, Section 4 of the said act directs that as soon as practicable after 
the creation of the Quartermaster Corps " not to exceed " 4,000 civil- 
ian employees of that corps, receiving a monthly compensation of 
not less than $30 nor more than $175 each, " not including " certain 
employees or classes of employees specified " shall be replaced per- 
manently by not to exceed an equal number of enlisted men of said 
corps " ; provides for the enlistment of not to exceed 2,000 men for 
said corps to replace details therein for extra duty ; and for the pur- 
pose of the act authorizes the enlistment of " not to exceed " 6,000 
men of the several grades provided for with pay of the correspond- 
ing grades in the Signal Corps, the enlisted force so authorized to 
be permanently attached to the Quartermaster Corps and not to be 
accounted for as a part of the enlisted force now authorized bj^ law. 
The section divides the civilian force of the Quartermaster Corps into 
two classes: (1) Those to be replaced by enlisted men as soon as 
practicable^ and (2) those referred to as "not included" or as 
" excepted from the provisions of this act." This act authorizes the 



D4 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEBAL. 

enlistment of men to replace those within the former class, but gives 
no such authority in respect to those in the latter class. It provides 
that the Secretary of War may fix the limits of age within which 
" civilian employees who are actually employed by the Government 
when this act takes effect, and who are to be replaced by enlisted men 
under the terms of this act, may enlist in the Quartermaster Corps," 
indicating that, as to those included within the requirement to be 
replaced by enlisted men, the words " as soon as practicaljle " mean 
something more than a replacement as vacancies may occur. The 
act further provides that '"'' nothing in this section shall he held or 
construed so as to prevent the employment of the class of civilian 
employees excepted from, the provisions of this act^ or the continued 
employment of civilians included in the act until such latter em- 
ployees have been replaced by enlisted men of the Quartermaster 
Corps." 

3. The employees referred to in the section as " not included " in 
the requirement for replacement " as soon as practicable," and in the 
proviso as " excepted from the provisions of this act," are described 
as follows: 

" Civil engineers, superintendents of construction, inspectors of 
clothing, clothing examiners, inspectors of supplies, inspectors of 
animals, chemists, veterinarians, freight and passenger rate clerks, 
civil-service employees^ and employees of the classified service^ em- 
ployees of the Army transport service and harbor-boat service, and 
such other employees as may be required for technical work," 

When the bill was originally introduced the underscored words 
were not in the bill, so that all the excepted employees were those 
" required for technical work." When the bill passed the House the 
words " employees of the classified service " had been added thereto, 
and later the words " civil-service employees " were added. In other 
respects the legislation as passed agrees substantially with the bill 
as originally introduced. 

4. In considering this section the question arises whether it deals 
with persons as " excepted from " its provisions or with the positions 
filled by the persons. It provides for replacing " civilian employees " 
by enlisted men, " not including " those described and referred to in 
the proviso " as excepted from the provisions " of the act ; and if the 
section be construed as excepting persons and not positions^ then 
when a position within the excepted classes becomes vacant in the 
ordinary course, the act would authorize the position to be filled by 
nn enlisted man, subject to the proviso that nothing in the section 
" shall be construed so as to prevent the employment of the classes 
of civilian employees excepted, from the provisions of this act"; that 
is, the proviso would reserve to the department the discretion to em- 
ploy civilians to fill vacancies in the excepted classes. So construed 
the proviso would limit the operation of the requirement to fill 
vacancies as they occur by enlisted men within the limit of the num- 
ber authorized by reserving to the department authority to employ 
civilians if deemed necessary to fill the vacancy of any employee of 
the excepted classes. This construction would give scope for the 
operation of the act not only as to the number authorized, but also 
as to the apportionment of the authorized enlisted strength in the 
several grades; that is, 15 master electricians, 600 sergeants, 1,005 
(should be 1,000) sergeants, 650 corporals, 2,500 privates (first 



DIGEST OF OPINIONS OF THE JUIKJE ADVOCATE GENERAL. 95 

class), 1,190 privates, and 45 cooks. If, on the other hand, the sec- 
tion be regarded as excepting positions and not persons, then there is 
no authority to employ enlisted men except as to the classes not ex- 
cepted from the operation of the section ; and as the excepted classes 
include, along with the persons required for technical work, " civil- 
service employees and employees of the classified service," thus in- 
cluding nearly aU of the employees of higher grades, the act would 
be in large part inoperative for want of persons or positions in re- 
spect to which it can operate. Moreover, as practically all of the 
higher salaries would pertain to the positions excepted, the provision 
for the higher grades among the enlisted men authorized would be 
unnecessary, since all of the positions of the classes calling for the 
higher grades would "be excepted from the operation of the act. Fur- 
thermore, this construction would render the proviso wholly unneces- 
sary, since, if the positions are excepted from the operation of this 
section, then, of course, they would continue to be filled as civil posi- 
tions, there being no authority to fill them by enlistment. 

5. I am therefore of opinion that Congress intended to except the 
persons described from the requirement that they should be replaced 
as soon as practicable by enlisted men, and that Congress had no 
intention to require the maintenance of the positions as civil posi- 
tions. Realizing, however, that the character of service required 
as to some of the places at least might make it impracticable to fill 
them by enlisted men, Congress, by the proviso, reserved to the de- 
partment authority to employ civilians to fill vacancies of the ex- 
cepted classes instead of filling them by enlisted men, as would be 
required in the absence of the proviso. 

6. In the second paragraph the Chief of the Quartermaster Corps 
enumerates certain classes of employees, " such as assistant wagon 
masters, cargadors, packers (with pack trains), teamsters, laborers 
(not classified), scavengers, etc.," none of which appear to belong to 
the classes excepted from the operation of the section. I concur 
in his view that these employees fall within the operation of the 
statute ; but his recommendation in regard to the rules of enlistment 
to be established by the Secretary of War is one pertaining to ad- 
ministration and does not appear to call for any remark or recom- 
mendation by this office. 

7. In the third and fourth paragraphs the Chief of the Quarter- 
master Corps draws distinction between certain employees required 
for technical work, whom he refers to as " excluded from enlistment " 
and as holding positions " which will have to be filled in future, as 
in the past, through the civil service," and other employees described 
in the exception as " civil-service employees and employees of the 
classified service," in respect to which he thinks the vacancies as they 
occur may properly be filled by enlisted men within the limits au- 
thorized. The language of the section does not admit of any dis- 
tinction between the positions requiring technical qualifications and 
those in the civil or classified service, all being equally excepted from 
the requirement of the section regarding their replacement by en- 
listed men as soon as practicable. Whatever distinction may be re- 
quired in the administration of the statute will have to be made by 
regulation under the authority to continue the " employment of the 
class of civilian employees excepted from the provisions " of the act. 
I am of opinion that under the authority of this proviso the Secre- 



96 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

tary of War can properly direct that as to employees required for 
technical work of the classes specified vacancies as they occur will 
be filled in future, as in the past, through the civil service; but as 
to other employees within the excepted classes, described in the ex- 
ception as " civilian employees and employees of the classified serv- 
ice," the vacancies will be filled by enlisted men within the limit of 
the number of enlisted men authorized. 

E. H. Crowder, 
Judge Advocate General. 



October 18, 1912. 
From : The Judge Advocate General. 
To: The Adjutant General. 
Subject: Additional members of the General Staff Corps. 

1. In a communication of the 10th instant The Adjutant General 
of the Army states that the Secretary of War desires the opinion of 
this office as to " whether or not the Chief of the Coast Artillery 
Corps and the Chief of the Division of Militia Affairs are members 
of the General Staff Corps, in view of the provisions of section 5 of 
the act of August 24, 1912, making appropriations for the support 
of the Army, which limits the number of general officers of the corps 
to two, and of section 8 of said act, which repeals all laws and parts 
of laws so far as they are inconsistent with the terms of said act." 
The question is presented with sufficient definiteness to admit of an 
intelligent discussion and a satisfactory conclusion, without the 
necessity of further restatement for those purposes. 

2. The office of Chief of Artillery was created by section 6 of the 
act of February 2, 1901 (31 Stat., 749), which also prescribes that 
that officer shall serve on the staff of the general officer commanding 
the Army. The act of Congress approved February 14, 1903 (32 
Stat., 831), established the office of Chief of Staff and the General 
Staff Corps, and prescribed inter aim the powers and duties of said 
office and the composition and duties of said corps. Section 3 of 
said act provides: 

" That the General Staff Corps shall consist of one Chief of Staff 
and two general officers, all to be detailed by the President from 
officers of the Army at large not below the gi-ade of brigadier gen- 
eral, four colonels, six lieutenant colonels, and twelve majors, all 
detailed from the corresponding grades in the Army at large, under 
such rules for selection as the President may prescribe; twenty cap- 
tains, to be detailed from officers of the Army at large of the grades 
of captain or first lieutenant, who while so serving shall have the 
rank, pay, and allowances of captain mounted. All officers detailed 
in the General Staff Corps shall be detailed therein for periods of 
four years unless sooner relieved. While serving in the General 
Staff Corps officers may be temporarily assigned to duty with any 
branch of the Army. Upon being relieved from duty in the General 
Staff Coi*ps officers shall return to the branch of the Army in which 
they hold a permanent commission, and no officer shall be eligible 
to a further detail in the General Staff Corps until he shall have 
served two years with the branch of the Army in which commis- 
sioned, except in case of emergency or in time of war." 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 97 

Section 5 of the same act also provides: 

" That the Chief of Artillery shall hereafter serve as an additional 
member of the General Staif." 

This latter provision appearing in the act creating the General 
Staff Corps was repeated ipsissimis verbis in section 5 of the act of 
March 3, 1903 (32 Stat., 1071), and appears in its final form in sec- 
tion 2 of the act of January 5, 1907 (34 Stat., 8C1), as follows: 

" That the Chief of Artillery or Chief of Coast Artillery shall be 
an additional member of the General Staff Corps and his duties shall 
be as prescribed by the Secretary of War." 

Such was the state of the law defining the relation of the office of 
Chief of Artillery and of that officer to the General Staff Corps on 
the 24th day of August, 1912, when the act making appropriation 
for the support of the Army for the present fiscal year became law. 

3. Section 5 of said act provides as follows : 

" That hereafter the General Staff Corps shall consist of two gen- 
eral officers, one of whom shall be the Chief of Staff, four colonels, 
six lieutenant colonels, twelve majors, and twelve captains and first 
lieutenants, all of whom shall be detailed from the Army at large in 
the manner and for the periods prescribed by law : Provided, That 
hereafter, except as otherwise provided herein, when any officer shall, 
under the provisions of section 26 of the act of Congress approved 
February 2, 1901, be appointed to an office above that of colonel, his 
appointment to said office and his acceptance of the appointment shall 
create a vacancy in the arm, staff corps, or staff department from 
which he shall be appointed, and said vacancy shall be filled in the 
manner prescribed by existing law, but he shall retain in said arm, 
staff corps, or staff department the same relative position he would 
have held if he had not been appointed to said office, and he shall 
return to said relative position upon the expiration of said appoint- 
ment to said office unless he shall be reappointed thereto; and if 
under the operation of this proviso the number of officers of any par- 
ticular grade in any arm, staff corps, or staff' department shall at 
any time exceed the number authorized by law, no vacancy occm'ring 
in said grades shall be filled until after the total number of officers 
therein shall have been reduced below the number authorized by law, 
but nothing in this proviso shall be held to apply in the case of any 
officer who now holds a four-year appointment to an office with rank 
above that of colonel, and whose return to the relative position he 
would have held if he had not been appointed to said office is not 
possible under existing law." 

Said act also prescribes in its eighth and concluding section : 
" That all lav/s and parts of laws, so far as they are inconsistent 
with the terms of this act, be and they are hereby repealed." 

4. The question presented, then, requires that it be determined, as 
a result of the application of the rules of statutory construction, 
whether the recent act, which prescribes anew, in the section quoted, 
supra, the constitution of the General Staff Corps, including the 
number of general officers thereof and without mention of additional 
members, and a repeal of all prior inconsistent laws, operates thereby 
to repeal expressly or by fair implication the provisions of law there- 
tofore existing and constituting the Chief of Coast Artillery an 
additional member of said corps. 

93668°— 17 7 



98 DIGEST OF OPIISriONS OF THE JUDGE ADVOCATE GENERAL. 

5. The repealing effect of section 8 of the recent act may, I think, 
be ascertained and stated without difficulty. Such general repealing 
clauses are of common use in legislation which is not new in charac- 
ter, and which is but part of a system of legislation upon a common 
subject matter. Such a clause simply implies a legislative assump- 
tion that the new law may to some extent be repugnant to some parts 
of the antecedent legislation on the same subject. If this be so, 
there is a repeal to the extent of the irreconcilable difference, but no 
further ; and this would be true by implication, regardless of the ex- 
istence of such clause. It is a general rule, therefore, that the inser- 
tion of a general repealing clause adds nothing to the repealing effect 
of the statute. Section 8, then, of the recent act does not serve in 
and of itself to affect in any wise the question of the repeal of the 
antecedent provision that the Chief of Coast Artillery shall be an 
additional member of the General Staff Corps ; nor does the repealing 
clause in question, taken in conjunction with section 5 of the same 
act, add anything to the repealing effect that the latter section in 
and of itself may have upon the antecedent provision referred to. 
Such provision is nowhere expressly repealed. It has been repealed, 
if at all, hj implication ; that is, by the legislative reconstitution of 
that corps in section 5 of the recent act which fails or omits to pre- 
scribe or provide for the additional membership in question. 

6. Kepeals by implication are not favored. Acts should be con- 
strued, if possible, so that all may be operative. However, subsequent 
legislation repeals previous inconsistent legislation upon the same 
subject and for similar purposes, not only on the theory of legisla- 
tive intention, but because contradictions can not stand together. The 
intention to repeal, however, can not be assumed, nor a repealing 
effect admitted unless the inconsistency is unavoidable, and then only 
to the extent of the repugnance. If it is clear that in the present 
instance the mere affirmative enumeration in section 5 of the recent 
act of those officers of the several grades constituting the General 
Staff Corps is sufficiently strong to imply a negative, and thus fur- 
nish a rule of exclusion, or if it plainly appears to have been the 
purpose of Congress in said section to cover all antecedent acts pre- 
scribing the composition of that corps, and thus give expression to 
the whole law on the subject, or if said section is in any other manner 
irreconcilably repugnant to the antecedent separate statutes pre- 
scribing the additional membership, the existence of such conditions 
must attribute a repealing effect to said section; otherwise, and so 
long as different functions and purposes can be assigned to the several 
separate statutes, all must stand. 

7. Of all branches of the Army the Coast Artillery Corps is the 
only one organized with a statutory chief. The statute originating 
the office of Chief of Artillery placed that officer upon the staff of 
the general commanding the Army. The statute which established 
the office of the Chief of Staff and the General Staff Corps and pre- 
scribed that the Chief of Artillery should be an additional member 
of said corps seems to be but a logical legislative continuation of the 
same relation. The relation thus established by statute has been 
maintained by two legislative repetitions (vide,' net March 3, 1903, 
32 Stat., 1021-2 ; sec. 2, act January 25, 1907, 34 Stat., 861) ; such rep- 
etitions, though made necessary by other considerations, serve, in and 
of themselves, to furnish suggestive force of fixedness of legislative 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 99 

policy and intention. It is believed that the legislative intention in 
making the Chief of Artillery an additional member of the General 
Staff Corps was, upon the one hand, to supplement that corps with 
that officer, who by virtue of his office possesses a general and par- 
ticular knowledge of his branch, in order that the General Staff 
Corps, thus availing itself, may the better perform its duties toward 
that branch, which differs largely in military functions and character 
from the other branches of the Army, and to the whole Army as well ; 
and, upon the other hand, to establish the correct military and admin- 
istrative relation of this office and officer to the Chief of Staff. Such 
intention is deducible not only from a review of the legislation upon 
the subject, but becomes particularly plain in the light of the practical 
administration of the office in question under the statutory status. 
The primary purpose of Congress was not, therefore, to increase the 
personnel of the General Staff Corps as such, nor the number of 
general officers to serve therewith, nor does the relation thus estab- 
lished decrease the number of officers available for actual service with 
troops. In such respects those provisions of law making the Chief of 
Artillery an additional member of the General Staff Corps appear 
to have no community of purpose with the section in the recent act 
reconstituting that corps. 

8. It is true that in section 5 of the recent act Congress has 
prescnbed for the constitution of the General Staff Corps a number 
of officers which, in the grades of general officer and of captain and 
first lieutenant differs from the quota of those respective grades pre- 
scribed by the act establishing that corps. But it has done so in 
affirmative language, without the use of words of negation or ex- 
clusion. Upon general principles a statute in affirmative terms, with- 
out negative words or words of exclusion, will not repeal existing 
statutes upon the same subject matter unless there is unavoidable 
repugnance. Had Congress intended to exclude the additional mem- 
bership of the Chief of Coast Artillery, it would have been easy to 
do so by the use of the simplest words of negation and exclusion 
without even destroying the affirmative form. I feel satisfied that 
the mere enumeration of the officers constituting the General Staff 
Corps in the recent act is not sufficient to take the present instance 
from under the application of the general rule, and that to permit 
such an exclusive interpretation of mere numbers to prevail over the 
general intention of the provision will not be justified, in view of 
the antecedent legislation upon the same subject matter, but with a 
different purpose and function, and of the other reasons advanced 
herein. 

9. If section 5 of the recent act clearly covers the whole subject 
matter of all antecedent acts respecting the composition of the Gen- 
eral Staff Corps — that is, if it plainly appears to have been the 
purpose of Congress to give expression therein to the whole law on 
the subject — then it must be held that all such antecedent acts be- 
come repealed by necessary implication. The said section, after pre- 
scribing what officers shall constitute the General Staff Corps, pro- 
vides that all of them " shall be detailed from the Army at large in 
the manner and for the periods prescribed by law." It prescribes 
no rules governing the methods of detail, but evidently reverts for 
such terms, in part at least, to the old section establishing the Gen- 



100 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

eral Staff Corps. The recent section, therefore, does not repeal by 
substitution the old section prescribing the constitution of the Gen- 
eral Staff Corps, but has reference throughout to the officers detailed 
to constitute that corps. I am therefore fairly convinced that the 
recent act, wherein it prescribes the constitution of the General Staff 
Corps, does not intend to cover the entire composition of that corps, 
but only so much of it as consists of officers who are detailed thereto, 
excluding from its purview those officers whose relation thereto is 
based upon a status fixed virtute officii. 

10, I have chosen, for convenience sake, to discuss first the ques- 
tion as it relates to the Chief of Coast Artillery. The same question 
is propounded as regards the additional membership of the Chief 
of the Division of Militia Affairs. 

The business and affairs pertaining to the militia were transacted 
in the office of The Adjutant General prior to February 12, 1908; 
upon that date the Acting Secretary of War, by formal order, created 
in the office of the Secretary of War a division to be known as that 
of militia affairs, vested it with the transaction of all business per- 
taining to the militia, and specifically defined its jurisdiction. By 
General Orders 141, Juh^ 25, 1910, the Acting Secretary of War 
directed that under the provision of paragraph 775, Army Regula- 
tions, the Chief of the Di'vision of Militia Affairs report to the Chief 
of Staff, who has supervisory power over all matters arising in the 
execution of the acts of Congress and Executive regulations made in 
pursuance thereof relating to the militia. Such was the intimate 
administrative relation between the chief of this division and the 
Chief of Staff when Congress, in the act of March 3, 1911 (36 Stat., 
1037), gave statutory recognition to the former office and fixed its 
relation to the office of the Chief of Staff and to the General Staff 
Corps by providing : 

" That hereafter the Chief of the Division of Militia Affairs, office 
of the Chief of Staff, shall be detailed from the general officers of 
the line of the Army, and while so serving shall be an additional 
member of the General Staff Corps." 

The general purpose and intention of the above provision were in 
evident recognition of the general movement for the improvement 
of the militia and of the legislative and administrative activity to- 
ward bringing that force into more intimate relation and coordina- 
tion with the War Department and the Regular Establishment. 
The specific purpose was, as in the case of the Chief of Coast 
Artillery, to supplement the General Staff Corps by that officer who 
represented the connection between the Regular Establisliment upon 
the one hand and the militia upon the other, and who, because of his 
facility for acquiring special knowledge of this important branch 
of national defense and because of his official relation to the militia, 
could the better accomplish his own functions as chief of the division, 
the more effectively aid the General Staff in all questions affecting 
the relation of the militia to the department, and thus contribute to 
the cooperation and coordination desired. Upon the other hand, its 
specific purpose was also to fix the correct military and administra- 
tive relation of the office and officer to the Chief of Staff. Such be- 
ing the general and special purpose of the statute in making the 
Chief of the Division of Militia Affairs an additional member of the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 101 

General Staff Corps, analogous in all respects to that of similar 
previous legislation in the case of the Chief of Coast Artillery, the 
reasoning advanced in the above discussion in the case of the latter 
officer is equally applicable and controlling in considering the rela- 
tion of the Chief of the Militia Division to the General Staff Corps. 
So, too, in considering the question as respects both officers, I can not 
disregard the fact, which strengthens both cases, that Congress eight 
years after having made the Chief of Coast Artillery, as such, an 
additional member of the General Staff Corps created and for similar 
reasons another additional member of that corps by virtue of his 
office, which fact, coupled with the presumption in favor of the con- 
tinuance of a relation once legislatively established, furnishes strong 
assurance in both cases of a fixed legislative intention and policy. 

11. I am satisfied, in view of the reasons hereinbefore advanced, 
that by fair construction some office and fimction can be assigned 
to the statutes providing that the two officers in question shall be 
additional members of the General Staff Corps, as well as to the 
recent section in question prescribing the constitution of said corps, 
without derogation from any of them. The purpose of the foraier 
I have already sufficiently indicated, and the purpose of the latter 
is, by reducing the detailed members of the General Staff Corps, 
to render the officers thus relieved available for service where, as 
Congress deemed, they will be of greater use. Under such circum- 
stances all the statutes must stand. 

12. I therefore conclude that the provisions of section 5 of the act 
approved August 24, 1912, making appropriations for the support 
of the Army for the present fiscal year, do not affect the relations of 
the Chief of Coast Artillery and the Chief of the Division of Militia 
Affairs to the General Staff Corps, and that each of these function- 
aries still is, by virtue of his office, an additional member of that 
corps. The question submitted is answered accordingly. 

E. H. Crowder, 
Judge Advocate General. 



BULLETIN 1. 

[Bulletin No. 25 is the last of the series of 1912.] 

Bulletin 1 WAR DEPAETISCENT, 

No. 1. J Washington, Jcmuary 20, 1913. 

The following digest of opinions of the Judge Advocate General 

of the Army for the period from October 1 to December 31, 1912, 

inclusive, and digests of certain decisions of the Comptroller of the 

Treasury and opinions of the Attorney General are published for 

the information of the service in general. 

Bulletins similar to this one will hereafter be issued monthly at 

the end of each calendar month covering opinions and decisions for 

said month. 

[1931376 B— A. G. O.] 

By order or the Secretary of War : 

LEONARD WOOD, 

Major Generalj Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ABSENCE: Leaves of, to nurses in the Army Nurse Corps; commutation 
of subsistence and cumulative leave. 

The act of March 23, 1910 (36 Stat., 249), which fixes the rates 
of pay of the Army Nurse Corps, provides that : 

"All female nurses shall hereafter be entitled, * * * to cumu- 
lative leave of absence with pay at the rate of thirty days for each 
calendar year of service in said corps." 

Appropriation is made in the Army appropriation act of August 
24, 1912 (37 Stat., 578), for payments "of the regulation allowances 
for commutation in lieu of rations to * * * male and female 
nurses on leave of absence." 

A female nurse of the Army Nurse Corps was absent on leave for 72 
days, at the end of which time she applied for and received her dis- 
charge from the Nurse Corps. Held., that if at the time of said 
discharge she was entitled to cumulative leave for the period stated, 
commutation of subsistence for such period might be allowed her 
at the rate specified in the Army Regulations. 

(6-227.2, J. A. G., Nov. 30, 1912.) 
102 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 103 

APPROPRIATIONS: Covering' the surplus of permanent appropriations 
into the Treasury; International Waterways Commission, appropria- 
tion for in the act of March 4, 1911. 

Section 4 of the river and harbor act of June 13, 1902 (32 Stat., 
873), prescribed the organization and duties of the International 
Waterways Commission, and for the purpose of paying its salaries 
and expenses, authorized the Secretary of War to expend from the 
amounts theretofore appropriated. 

" * * * for the Saint Marys Eiver at the Falls, the sum of 
twenty thousand dollars, or so much thereof as may be necessary to 
pay that portion of the expenses of said commission chargeable to 
the United States." 

Subsequently, appropriations were made annually for " continuing 
the work of investigation and report" of said commission, the last 
one being that contained in the sundry civil appropriation act of 
August 24, 1912 (37 Stat., 448), which appropriated a sum of money 
" for continuing until December thirty-first, nineteen hundred and 
twelve," such investigation and report, and provided for a report to 
Congress at its next session. Section 10 of the act of March 4, 1909 
(35 Stat., 1027), required the Secretary of the Treasury to cause all 
unexpended balances of appropriations which remained on the books 
of the Treasury on the first day of July, 1904, except permanent 
specific appropriations and certain others mentioned, to be covered 
into the Treasury, and that for such purpose no appropriation made 
prior to said date should be regarded as a permanent specific appro- 
priation unless by its terms it was made available until expended. 
Held^ that the act of March 4, 1909, caused the appropriation there- 
tofore made available for the commission by act of June 13, 1902, 
to be covered into the Treasury, so that the same is not now available 
for the purposes of said commission. Held further^ that the appro- 
priation in the sundry civil act of March 4, 1911 (36 Stat., 1407), for 
continuing the work and investigation of the commission is classed 
as permanent, and the unexpended balance thereof is available for 
the purposes of said commission after December 31, 1912. 

(62-930, J. A. G., Dec. 18 and 23, 1912.) 



ARMY ORGANIZATION: General Staff Corps; chiefs of the Coast Artil- 
lery Corps and of the Division of Militia Affairs. 

The laws which created the offices of the Chief of Coast Artillery 
and the Chief of the Division of Militia Affairs provided that they 
should be considered as additional members of the General Staff 
Corps. The act of February 14, 1903 (32 Stat., 831), established the 
office of Chief of Staff and the General Staff Corps and prescribed 
the composition and duties of the same. Subsequently to the acts 
making the chiefs of the Artillery Corps and of the Division of 
Militia Affairs, respectively, additional members of the General 
Staff Corps, Congress by section 5 of the act of August 24, 1912 
(37 Stat., 594), prescribed anew the composition of the General 
Staff Corps and specified the manner of details thereto. The eighth 
section repealed all laws inconsistent with the terms of said act. 
Held^ that neither the repealing clause in said section 8, nor the 
provision prescribing anew the composition of the General Staff 
Corps and the manner of making details thereto, repealed the laws 



104 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

constituting the Chief of the Artillery Corps and. the Chief of the 
Di^dsion of Militia Affairs additional members of the General 
Staff, nor did such legislation affect their relations to the General 
Staff Corps; and that said officers continue to be such additional 
members. 

(6-213, J. A. G., Oct. 18, 1912.) 



ARMY RESEBVE; Composition of; obligation to serve. 

Section 2 of the Army appropriation act of August 24, 1912 (37 
Stat., 590), prescribes, inter alia: 

" That on and after November first, nineteen hundred and twelve, 
all enlistments in the Regular Army shall be for the term of seven 
years, the first four years in the service with the organizations of 
which those enlisting shall form a part, and, except as otherwise pro- 
vided herein, the last three years on furlough and attached to the 
Army Reserve hereinafter provided for ;***/" 

Then follow seven provisos, wdiich, referred to by number in the 

order in which they appear, provide : 
M\ * * * 

(2) "That any enlisted man, at the expiration of three years' 
continuous service with such organizations, either under a first or 
any subsequent enlistment, upon his written application, may be 
furloughed and transferred to the Army Reserve, in the discretion 
of the Secretary of War, * * * . " 

(3) * * * ' 

(4) " That hereafter the Army Reserve shall consist of all en- 
listed men who, after having served not less than four years with 
the organizations of Avhich they form a part, shall receive furloughs 
without pay or allowances until the expiration of their terms of 
enlistment, * * * : " 

/ K\ * * * 

(6) "That except upon reenlistment after four years' service or 
as now otherwise provided for by law, no enlisted man shall receive 
a final discharge until the expiration of his seven year term of en- 
listment, including his term of service in the Arm}' Reserve, but 
any such enlisted man may be reenlisted for a further term of seven 
years under the same conditions in the Army at large, or, in the 
discretion of the Secretary of War, for a term of three years in the 
Army Reserve; and any person who may have been discharged 
honorably from the Regular Army with character reported as at 
least good, and who has been found physically qualified for the 
duties of a soldier, if not over forty-five years of age, may be en- 
listed in the Army Reserve for a similar term of three years : " 

(7) "That in the event of actual or threatened hostilities the 
President, when so authorized by Congress, may summon all fur- 
loughed soldiers who belong to the Army Reserve to rejoin their 
respective organizations, and during the continuance of their service 
with such organizations they shall receive the pay and allowances 
authorized by law for soldiers serving therein, and any enlisted 
man who shall have reenlisted in the Army Reserve shall receive 
during such service the additional pay now provided by law for 
the soldiers of his arm of the service in their second enlistment period. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 105 

Upon reporting for duty, and being found physically fit for service, 
they shall receive a sum equal to five dollars per month for each 
month during which they shall have belonged to the Reserve, as 
well as the actual cost of transportation and subsistence from their 
homes to the places at wiiich they may be ordered to report for duty 
under such summons." 

Uelcl^ (1) That the fourth proviso in section 2 of the act of August 
24, 1912, swpray is to be regarded as only a partial definition of the 
"Army Reserve," and that the section as a whole indicates that the 
Army Reserve includes, along with soldiers furloughed at the end 
of four years, soldiers furloughed on their own applications at the 
end of three years, together with men who reenlist or enlist in the 
Army Reserve as authorized in said section; 

(2) That the men who enlist or reenlist in tlie Army Reserve form 
a class different from the Army Reserve composed of furloughed 
soldiers only in respect of the fact that the former do not enter 
the Reserve by way of furlough from particular organizations, and 
that the provision for their pay when summoned for active duty is 
somewhat different from that of soldiers furloughed to the Army 
Reserve, but that all members of the Reserve are under the same 
obligation to report for service wdien summoned by the President, 
in the event of actual or threatened hostilities, when so authorized 
by Congress. 

(34-050, J. A. G., Oct. 1, 1912.) 



ARMY RESERVE: Right to vote; amenability to trial by courts-martial. 

With reference to the following questions, viz : 

"(1) Do members of the Army Reserve who return to their legal 
residences have a right to vote in those States that by their constitu- 
tion deny this right to members of the U. S. Army or Navy ? " 

" (2) Are members of the Army Reserve amenable to trial by court- 
martial for any military off'enses committed by them Avhile in Re- 
serve and not recalled to the colors ? " 

Held^ that as soldiers furloughed to, or enlisted or reenlisted in, 
the Army Reserve established by section 2 of the act of August 24, 
1912 (37 Stat., 590), belong to and constitute part of the Army of 
the United States, even though they have not been summoned for 
active service, the first question should be answered in the negative 
and the second in the affirmative. 

(86-220, J. A. G., Nov. 26, 1912.) 



CLERKS AND EMPLOYEES: Civil service; removal of a person in the 
classified service on written charges. 

Charges of turning in defective work and violating the rules were 
made against a seamstress at a quartermaster depot, to which she 
made reply. The Chief of the Quartermaster Corps having decided 
that the evidence was not sufficient to warrant a discharge, the pa- 
pers were again submitted with additional affidavits supporting the 
charges and findings of the depot council that her discharge should 
be recommended. Section 6 of the act of August 24, 1912 (37 Stat., 



106 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

555), appropriating for the Post Office Department, provides that 

no person in the classified civil service shall be removed therefrom 

except for reasons stated in writing, and that a copy of the charges 

preferred shall be furnished to the person sought to be removed who 

shall— 

" also be allowed a reasonable time for personally answering the 

same in writing ; and affidavits in support thereof ; " 

Held, that the statute gives to the employee the right to answer 
not only the charges but also the affidavits in support thereof, and as 
the new evidence in this case does not seem to have been brought to 
the attention of the accused employee the record does not show com- 
pliance with the statute. The accused should be given opportunity 
to answer or explain the allegations in the affidavits. 

(16-210, J. A. G., Nov. 20, 1912.) 



CLEBKS AND EMPLOYEES: Pay of on legal holidays when not render- 
ing' service; closing public offices on general holidays. 

Upon consideration of the question of closing the offices of the 
War Department in and about the port of New York on the day of 
the general election in 1-912. Held, that there is no legal objection 
to the War Department's following the usual practice of closing its 
offices or reducing the number of employees on duty to the minimum 
necessary for the transaction of public business, on election days or 
other general holidays. If this be done, no question could arise as 
to the pay of employees whose compensation is fixed by the month 
or year, but no compensation could be paid to per diem employees 
who render no service on such days, unless specifically authorized 
by Congress. 

(2-153.11, J. A. G., Oct. 28, 1912.) 



CLERKS AND EMPLOYEES: Payment of living expenses while on tem- 
porary duty. 

An electrical assistant of the Signal Corps, stationed at the 
headquarters of the Central Division, was engaged on temporary 
duty at Fort Sill, Okla., for more than 20 days. Before completing 
his work at that post he was ordered to perform other temporary 
duty at another place, and was compelled afterwards to return to 
Fort Sill to complete the work under his first assignment. Sub- 
division 5, paragraph 744, Army Kegulations, 1910, provides that 
civilian employees of the War Department are entitled to reimburse- 
ment for the cost of meals and lodging during absence from their 
regular stations on temporary duty. This right has been limited by 
a letter of The Adjutant General of the Army to a period of not to 
exceed 30 days. 

Field, that as the electrical assistant in this case was interrupted 
by competent orders in the performance of his temporary duty at 
Fort Sill, his return to complete the work at that post was in the 
nature of a second assignment or tour of duty, and that he was en- 
titled to an allowance of 30 days for each assignment at said post. 

(16-403, J. A. G., Nov. 4, 1912.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 107 

CLERKS AND EMPLOYEES: Transfer and payment of from lump-sum 
appropriation. 

It was proposed to transfer a clerk at $1,200 from the office of the 
Chief of Engineers, War Department, to the Engineer Department 
at Large and pay him a sahiry of $1,500 from himp-sum appropria- 
tions, the clerk to be stationed at Washington, D^ C., and his duties 
to be essentially different from those he was already performing. 
Section 7 of the general deficiency act of August 26, 1912 (37 Stat., 
626), provides, inter alia: 

" Nor shall any person employed at a specific salary be hereafter 
transferred and hereafter paid from a lump-sum appropriation, a 
rate of compensation greater than such specific salary." 

Held^ that the proposed transfer and appointment would, in 
effect, be a transfer at the salary now received and an advance in 
compensation in violation of said act, and that the same could not 
lawfully be made. 19 Comp. Dec, 163. 

(5-075, J. A. G., Nov. 9, 1912.) 



CLOTHING ALLOWANCE: Change of initial allowance during enlist- 
ment. 

A soldier enlisted Ma,y 12, 1912, for three j^ears and was credited 
with the initial allowance for clothing in force at the time. In esti- 
mating this initial allowance the value of an overcoat was taken 
into consideration. On July 1, 1912, the issue of overcoats as a part 
of a soldier's clothing allowance was discontinued, and such articles 
were thereafter issued on company and detachment commanders' 
receipts for the use of the soldiers. The initial allowance was at 
the same time reduced. This soldier did not draw an overcoat and 
one was issued for his use. Paragraph 1176, Army Regulations, 
1910, provides that the initial allowance for clothing is not considered 
as earned until the soldier has been in service for six months. 

Held^ that this soldier should be credited on his initial clothing 
allowance at the rate in force at the time of his enlistment, and that 
such credit should remain notwithstanding the initial allowance 
was subsequently reduced before the expiration of the six months' 
period. C. 27637. 

(72-420, J. A. G., Nov. 25, 1912.) 



CLOTHING ALLOWANCE: Title to clothing issued to soldier while in 
the service and that retained by him after discharge. 

The law provides that the President shall prescribe the quantity 
and kind of clothing which shall annually be issued to the troops of 
the United States (sec. 1296, Rev. Stat.) and this is done by the issue 
of tables from time to time showing the articles which shall be issued 
and the values thereof. When the soldier is discharged from the 
service his clothing account is adjusted pursuant to sections 1302 
and 1308, Revised Statutes, and he is charged in cash with the value 
of the clothing overdrawn and paid in cash the difference in value 
between the amount allowed and the amount drawn. 



108 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Ileld^ that while in the service the clothing dniwn by the soldier 
still remains the property of the United States, but that, upon the 
final settlement on discharge when the soldier pays for the clothing 
which he is allowed to retain, the Government relinquishes its title 
to such retained clothing and the same becomes the property of the 
soldier. 

(C. 11251, J. A. a, Jan. 10, 1912.) 



COMMUTATION OF QUAHTERS: Duty with troops; status of an oflicer 
acting as post and district quartermaster, and of a pay clerk on duty 
with him. 

An officer of the Quartermaster Corps was ordered to report to 
the commanding officer at Fort Banks, Mass., for duty as post 
quartermaster, and also to the commanding officer of the Artillery 
District of Boston, whose headquarters were at the same place, for 
duty as district quartermaster. A pay clerk was also ordered to 
report at the same time at Fort Banks to said officer of the Quarter- 
master Corps for duty with him. Owing to lack of available quarters 
at Fort Banks authority was requested for the officer and pay clerk 
to live at Winthrop, Mass., and draw commutation of quarters. 
Held, that as an officer of the Quartermaster Corps the duties of 
such officer under his assignment were not limited to those of quar- 
termaster but embraced duties formerly covered by the Quarter- 
master, Subsistence, and Pay Departments; that his duties as post 
and as district quartermaster placed him in the status of an officer 
serving with troops ; and that he was, therefore, not entitled to com- 
mutation of quarters. For the same reason the pay clerk should be 
regarded as serving with troops and as not entitled to said com- 
mutation. 

(72-333, J. A. G., Dec. 7, 1912.) 



CONTRACTS: Appropriations; obligations in excess of; liability for in- 
definite amount. 

Section 3679, Revised Statutes, as amended by the act of February 
27, 190G (34 Stat., 48), expressly forbids the expenditure of money 
in excess of appropriations, or the involving of the Government 
'•in any contract or other obligation for the future payment of 
money in excess of such appropriations unless such contract or obli- 
gation is authorized by law." 

Held, that the stipulation in a proposed revocable lease of a por- 
tion of a pier from the Commissioner of Docks, New York City, to 
indemnify the city for all claims arising from accidents to persons 
or property, is objectionable because it would bind the Government to 
a contingent liability for an indefinite and possibly a large amount, 
incapable of ascertainment when the obligation is entered into, and 
w-hich might exceed the amount of the appropriation. Held further, 
that a provision in said lease for rebuilding the premises if destroyed 
by fire or other means named, is likewise objectionable as indefinite, 
and should not be inserted unless a sufficient sum for rebuilding 
be reserved from the api^ropriation. 

(76-012.1, J. A. G., Oct. 28, 1912.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 109 

CONTRACTS: Eight-hour law and law requiring bonds for the protection 
of laborers, mechanics, and material men; labor on vessels of tha 
i/nited States. 

The act of August 1, 1892 (27 Stat., 340), limits the service or em- 
ployment of any laborer or mechanic employed " by any contractor or 
subcontractor upon any of the public works of the United States" 
to eight hours in any one calendar day, and provides that — 

" It shall be unlawful for * * * any such contractor or sub- 
contractor whose duty it shall be to employ, direct, or control the 
services of such laborers or mechanics to require or permit any such 
laborer or mechanic to work more than eight hours in any calendar 
day except in case of extraordinary emergencv." 

The act of February 24, 1905 (33 Stat., 812), requires a bond for 
the protection of laborers and material men to be executed by every 
contractor — 

" For the construction of any public building, or the prosecution 
and completion of any public work." 

Held^ that vessels owned by the United States and those under 
construction for it, the title to which passes to the United States as 
payments are made, are public works within the meaning of the 
above statutes relating to the hours of labor and the execution of 
bonds for the protection of laborers and material men ( Title Guaran- 
tee cSi Tnist Go. V. Crane Co., 219 U. S., 24; 29 Op. Atty. Gen., 395), 
and that the specifications in future contracts for the construction or 
repair of such vessels should contain a reference to said act of August 
1, 1892, the same as contracts on other public works involving the 
employment of laborers and mechanics. 

(32-213.3, J. A. G., Oct. 21, 1912.) 



CONTRACTS: Laborers and material men; bond for protection of, where 
consideration is small. 

The act of February 24, 1905 (33 Stat., 811), requires every person 
entering into a contract with the Government for the construction of 
any public building or the prosecution and completion of any public 
work to execute the usual penal bond with an additional provision 
for making prompt payment to all persons furnishing labor or mate- 
rial for the work. Held., that the statute makes no exception in cases 
where the consideration is small or where the Government is fur- 
nishing part of the material, and that the requirement for the execu- 
tion of a bond in such cases can not be waived ; but, held further, 
that the amount of the bond as fixed by paragraph 577, Army Regu- 
lations, 1910, and General Orders, No. 60, War Department, May 8, 
1911, may be waived and the amount increased or diminished as the 
circumstances in each case may seem to require. 

(12-123.1, J. A. G., Oct. 14,' 1912.) 



CONTRACTS: Option to increase quantities when appropriation is in- 
sufficient for the entire work. 

The amount appropriated for a public work not being sufficient 
for its completion, it was proposed to insert in the specifications a 
provision reserving to the United States the right to increase the 



110 DIGEST OF OPIlSriONS OF THE JUDGE ADVOCATE GENERAL, 

quantities used as a basis for canvassing the bids to an amount suffi- 
cient to complete the entire work should Congress make provision 
therefor. Held^ that this would not bind the Government to increase 
the amount, and the insertion of the provision contemplated would 
not be a violation of sections 3G79, 3732, and 3733, Revised Statutes, 
which prohibit the entering into a contract beyond the amount appro- 
priated by law for its fulfillment; and that the original advertise- 
ment would be sufficient to cover the contract as extended by the 
option. 

(76-101, J. A. G., Nov. 7, 1912.) 



COPYRIGHTS: Compilation of daily wage scale by a Government clerk; 
protection of copyright wlien used -by the United States. 

A clerk in the Engineer Department at Large compiled a daily 
wage scale at his home and oifered the same to the department for 
use in the public service, reserving to himself, if permissible, the 
privilege of copyrighting the same. Held, that the clerk would not 
lose his right of copyright in his production by granting to the 
United States permission to print the same for its use (9 Cyc, 915), 
but that in order to protect himself from infringement it would be 
necessary to have a notice printed on the title page, or on the page 
following, reserving the right to the copyright. 

(24-330, J. A. G., Dec. 6, 1912.) 



DESERTEUS: Statutes of limitation; 48th and 103d Articles of War; 
reward for apprehension. 

A soldier enlisted on June 16, 1906 ; deserted on August 24, 1907 ; 
was apprehented and returned to military control on January 28, 
1910; escaped from confinement on February 24, 1910, while await- 
ing trial ; and was again apprehended and returned to military con- 
tral on or about November 20, 1912, He claimed to have been within 
the limits of the United States during the entire period since his 
enlistment, and there was nothing in the statement of facts to nega- 
tive this claim, nor was there anything in the statement of facts to 
indicate that, so far as the offense of escape was concerned, the case 
came within the saving clause of the first paragraph of the 103d 
Article of War, reading as follows: "unless, by reason of having 
absented himself, or of some other manifest impediment, he shall not 
have been amenable to justice within that period." 

The accused had not been restored to duty to complete his term of 
service, either following an admission of the first charge of deser- 
tion or following a conviction upon that charge. 

Held, that in the absence of an admission as to the correctness of 
the charge of desertion or of a conviction upon that charge, thus 
determining that the soldier had not completed his term of service 
and fixing his liability to serve for a definite period after his restora- 
tion to duty and beyond the calendar term for which he enlisted, the 
48th Article of War, in connection with the mere fact that he had 
been charged with desertion, can not serve to postpone the beginning 
of the two-year period of limitation prescribed in respect of deser- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. Ill 

tion in the second paragraph of the 103d Article of War ; that should 
the soldier be arraigned upon the two charges of desertion or upon 
the charge of escape, he might plead the statute of limitations suc- 
cessfully in respect of said offenses; and that, in view of this fact 
and of the provisions of paragraph 121, Army Regulations, no re- 
ward was payable for his apprehension and delivery. 
(26-323, J. A. G., Nov. 23, 1912.) 



DETACHED SERVICE: Absence with, leave; penalty for detaching officer 
for duty of any kind under certain conditions. 

The Army appropriation act of August 24, 1912 (37 Stat., 571), 
contains a proviso prohibiting officers of company grade from being 
detached from their organizations for duty of any kind unless they 
shall have been " actually present for duty for at least two of the 
last preceding six years" with their company organizations, adding 
that — 

"All pay and allowances shall be forfeited by any superior for 
any period during which, by his order or his permission or by reason 
of his failure or neglect to issue or cause to be issued the proper 
orders or instructions at the proper time, any officer shall be de- 
tached or permitted to remain detached in violation of any of the 
terms of this proviso." 

Held^ that an officer of company grade who is absent with leave, 
though not " actually present for duty " with his organization is not 
to be considered as detached from his organization for duty of any 
kind " in such sense as to bring into operation the penalty clause 
of the proviso above quoted. 

(6-224, J. A. G., Sept. 16, 1912.) 



DETACHED SERVICE: Absence; leave of, to company officer on detached 
service who may no longer remain thereon, to enable him, while on 
leave status, to continue in the same duties. 

A captain of Cavalry who had had less than two years' service 
with his troop out of the preceding six years, and who was on duty 
under appropriate orders as a student officer at a military school in 
France, applied for three months leave of absence in order to con- 
tinue his work at said school and for permission thereafter to con- 
tinue said work until the completion of the course, if in the mean-' 
time the military authorities could make arrangements to that end. 
An order had been issued to said officer relieving him from duty at 
the school on December 15, 1912, and directing him to proceed to 
join his troop in compliance with the proviso of the act of August 
24, 1912 (37 Stat., 571), as amended by the joint resolution of the 
same date, that — 

" On and after December 15, 1912, in time of peace whenever any 
officer holding a permanent commission in the line of the Army with 
rank below that of major shall not have been actually present for 
duty for at least two of the last preceding six years with a troop, 
battery, or company of that branch of the Army in which he shall 
hold said commission, such officer shall not be detached nor per- 



112 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

mitted to remain detached from such troop, battery, or company 
for duty of any kind." 

Held^ that service as a student officer at a foreign military school 
imder the conditions stated is service for which an officer of the line 
of the Army below the grade of major is not to be detached or per- 
mitted to remain detached if he shall not have been '■'actually present 
for duty for at least two of the last preceding six years" with his 
troop, battery, or company, and that the granting of a leave of ab- 
sence for the purpose of allowing an officer to continue in the per- 
formance of such duty during the period of such absence would be 
in contravention of the law. Advised^ therefore, that the leave be 
not granted. 19 Op. Attv. Gen., 600. 

(6-121, J. A. G., Nov/27, 1912.) 



DETACHED SERVICE: Duty status; definition of the terms " company, 
troop, or battery," " actually present for duty," and " detached for 
duty of any kind; " date when penalty clause becomes operative. 

The Army appropriation act of August 24, 1912 (37 Stat., 571), 
provides — 

" That hereafter in time of peace whenever any officer holding a 
permanent commission in the line of the Army with rank below that 
of major shall not have been actually present for duty for at least 
two of the last preceding six years with a troop, battery, or company, 
of that branch of the Arni}'^ in which he shall hold said commission, 
such officer shall not be detached nor permitted to remain detached 
from such troop, batter}', or company, for duty of any kind; and 
all pay and allowances shall be forfeited bv any superior for any 
period during which, by his order, or his permission, or by reason of 
liis failure or neglect to issue or cause to be issued the proper order 
or instructions at the proper time, any officer shall be detached or 
permitted to remain detached in ^dolation of any of the terms of this 
proviso ; " 

This proviso was amended by joint resolution of the same date 
(37 Stat., 645), substituting for the word "hereafter" where the 
same first appears therein, the words " on and after December fif- 
teenth, nineteen hundred and twelve." 

On consideration of said proviso, as amended, it was held : 

1. Congress has specifically designated the composition of troops, 
batteries, and companies, and prescribed the number and grades of 
officers and enlisted men for each. It has thus pronounced a fairly 
specific definition of what a troop, battery, or company is, and has 
limited the nimiber of them that normally compose the several 
branches of the service. The presumption is strong that Congress 
has employed these terms in the above proviso in the sense thus de- 
fined. The term troop, battery, or company can not cover machine- 
gun platoons, regimental detachments (such as rifle teams). Army 
service detachments maintained at the service schools and at the 
Military Academy, the Cavalry, Field Artillery, and Engineer de- 
tachments maintained at the latter point, and the recruit and prison 
companies maintained at the recruit depots and the United States 
Militarv Prison and its branch. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 113 

2. The use of the word " actually " in connection v;ith the phrase 
"■ present for duly " requires that the phrase should be construed lit- 
erally, that is, that the officer should be present on duty with one of 
the organizations prescribed in the sense that he is in a regular and 
normal duty status with respect thereto, although it may at times be 
impracticable for him actually to perform every duty normally per- 
taining to the status — and therefore as- excluding an officer who, al- 
though physically present at the post or station where his troop, bat- 
tery, or company is serving, and is separated from duty therewith 
by an order assigning him for other duty, notwithstanding he may 
be available for such duty in the sense that an order from his imme- 
diate commander would restore him to such duty. 

(«) Performance of duty is the object of the presence which the 
statute commands and is the single contemplation of the phrase 
" actually present for duty ;" and any presence that does not con- 
template as its primary purpose and result the performance of duty 
as the duty sliall normally occur is a constructive rather than an 
actual presence for duty and is not a compliance with the statute. 

{h) In determining when officers who have been withdrawn from 
the performance of normal duty Avith a troop, battery, or company, 
including those so withdrawn by the orders of their immediate regi- 
mental or post commanders, may be treated as again " actually pres- 
ent for duty " with a troop, battery, or company, the true rule is that 
when such an officer shall resume, pursuant to competent orders, such 
an actual relation to a company as will make him available without 
further orders to perform the usual duties of his grade with respect 
to said company, with the primary purpose of performing them, and 
therefore stands able and ready to perform them as they arise in the 
course of military administration, he is " actually present for duty " 
with a troop, battery, or company within the meaning of the statute. 

3. In the phrase " shall not be detached nor permitted to remain 
detached * * * for duty of any kind," the qualifying words " of 
any kind " bring within the purview of the phrase all descriptions of 
duty for which it is customary to detach officers, irrespective of its 
character or duration, and it would not be competent to read into 
the proviso an exception as to any detached duty which under the 
customs of the service or the usual practice of military administra- 
tion would not require a formal order of detachment from a troop, 
battery, or company. The kind of order which creates or destroys 
the duty status or the grade of authority which issues such order can 
not be regarded as material in determining whether any kind of 
" detachment " comes within the terms of the proviso. The fact that 
a formal order is not required, or is not issued, or does not denomi- 
nate such duty as detached duty, or does not in terms order a de- 
tachment of any kind, can not conclude the facts in the case or serve 
to qualify the force of the words " duty of any kind; " nor can the 
duration of the duty, whether transitory or temporary, or for the 
longer and usually more or less definite period, serve to extinguish its 
character as " duty of any kind.'\ 

4. Held^ consequently, in response to a specific inquiry — 

{a) That an officer is not to be considered as " actually present for 
duty " with a troop, battery, or company when ordered to and per- 
forming the following descriptions of duty, provided that the 

93668°— 17 8 



114 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXERAL. 

order assigning liim to such duty operates to relieve liim from the 
])ei'formanee of duty with his proper organization, namely: 

To anotlier post to take an examination for pronsotion: to the 
Philippine Islands even though the officer is due to be transferred on 
account of foreign service; on court-martial duty at another post as 
a member, witness, judge advocate, or counsel : to make annual militia 
inspections; for militia duty at camps of instruction; for duty as 
nmpire or observer at maneuvers, or as range officer or competitor 
at competitions; for reconnoissance or map work; to supervise elec- 
tions; as a member of an}^ board or commission at a post other than 
his own; to conduct prisoners; for duty as regimental or battalion 
staff officer; for duty as post adjutant, quartermaster, commissary, 
range officer, prison officer, post exchange officer, engineer, ordnance, 
signal, or police officer; for duty with a machine-gun platoon or 
regimental detachment; on duty relieving flood and earthquake 
sufferers; sick in quarters or in hospital at his post or elsewhere; in 
quarantine at a station where his company is on duty; on duty as 
artillery district staff officer serving at a post where Coast Artillery 
companies are stationed, but performing no company duty; except, 
however, that an officer who commands a detached portion of his 
troop, battery, or company is to be considered as actually present for 
duty with his organization as contemplated by said proviso. 

(7/) Tiiat an officer of company grade who is sick in quarters or 
in hospital at his post or elsewhere, or in quarantine at a station 
where his company is on duty or elsewhere, or in compliance with 
su.mmons from a civil or military court, or in arrest, or undergoing 
trial, or traveling in compliance with orders to change station from 
one company assignment to another, or absent with leave, though not 
" actually present for duty " with his organization, is not to be con- 
sidered as detached from his organization " for duty of any 
kind " in such sense as to bring into operation the penalty clause of 
the proviso. 

(c) The status "awaiting orders" is an exceptional one in our 
service and the attendant circumstances in each case must be relied 
upon to determine v.hether the placing of the particular officer in 
that status may or may not bring into operation the penalty' clause 
of the proviso. 

5. Advised, that the effect of the proviso is to require that an ac- 
counting be kept with all line officers of company grade under the 
headings " actually present for duty with a troop, battery, or com- 
l^any," and " detached from a troop, battery, or company for duty of 
any' kind." The first account will reveal the officer's eligibility for 
detached service; the second will reveal the field of application of the 
penalty clause of the statute. The accounting will also reveal a third 
status of officers of company grade in which they are neither " actu- 
ally present for duty with a troop, battery, or comijany," nor de- 
tached therefrom for duty of any kind. Such absences from duty 
with a company will prevent the officers from accuundating eligibil- 
ity for detached service, but will not furnish any occasion for the 
application of the penalty clause. 

6. That the period between the approval of tlie above proviso 
(August 24, 1912) and tbe date of its taking effect (December 15, 
1012) is one of preparation for meeting the i^^cjuirements of the 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 115 

statute; that the changes in the status and stations of officers neces- 
S;UT to meet the requirements of the proviso must be ordered so as 
to become effective on or before December 15, 191'2 ; and that on 
and after that date the penalty clause of the proviso will be operative 
against any officer responsible for its nonenforcement. 
(6-1-24, J. A. G., Sept. 16, 1912.) 



DETACHED SERVICE: Duty status; detail as professor of military science 
and tactics, and assumption of active duty while on leave of absence. 

Section 1225, Revised Statutes, provides that — 

" The President may, upon the application of any established 
college or university within the United States, having capacity to 
educate, at the same time, not less, than one hundred and fifty male 
students, detail an officer of the Army to act as president, superin- 
tendent, or professor thereof ; * * *.'' 

Said section was amended by the act of November 3, 1893 (28 Stat., 
7), which provided that — 

" No officer shall l)e thus detailed who has not had five years' serv- 
ice in the Army and no detail to such duty shall extend for more 
than four years." 

An officer who had not had sufficient commissioned service to ren- 
der him available for detail as professor of military science and tac- 
tics under the provisions of said section, as amended, applied for 
leave with permission to report to the president of the university to 
which he sought to be detailed as soon as the position should become 
vacant, and with the purpose of performing the duties thereof v/hile 
on Leave, and of entering upon the duties of the position under a 
regular detail thereto, after the expiration of his leave when he would 
]!a\e had sufficient commissioned service to permit his detail. Held., 
lliat when an officer on leave enters upon the actual performance of 
military duties, with the permission of the War Department, he 
therel)y relinquishes his leave and enters upon a duty status, and that 
to permit a leave to be taken for this purpose would be to grant per- 
mission to do by indirection what could not lawfully be done directly. 
Adrhed, therefore, that the leave requested for the purpose ex- 
pressed, and the permission requested in connection therewith, be not 
granted. 

(2-100, J. A. G.. Nov. 25, 1912.) 



DETACHED SES.VICE: Duty status; mine planter; status of an officer 
commanding' same with respect to his being actually present for duty 
with his company. 

A mine planter exists for the purpose of giving expert instruction 
in mine service. The command consists of a commanding officer 
assigned thereto by the AVar Department, a detachment of men 
chosen from one or more companies for their aptitude and efficiency 
in the duties required of them, a crew of civilian employees, the ves- 
sel, and the materiel. The duty of such command is to render 
expert or special instruction in mine service to the various Coast 
Artillery commands which it may visit in the several Artillery dis- 
tricts as required by orders. The command of a mine planter serv- 



116 DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ing several districts under the direction of the War Department is 
not subject to the orders of the commander of the district to which 
it is for the time being assigned for instruction purposes, except as 
to the matters pertaining to the employment of the vessel. An offi- 
cer assigned to the command of a mine planter by the War Depart- 
ment is habitually carried as on detached service and remains on such 
duty the usual time permitted for detached service. The regulations 
for mine planters declare that "the mine planter and the detachment 
on board shall constitute a separate command immediately under the 
command of the officer of the vessel." Held^ that since, under the 
present regulations and the conditions of the service where a single 
planter serves several districts, the commanding officer of a mine 
planter is, except for minor purposes, under the immediate jurisdic- 
tion of the Secretary of War, exercises a separate and independent 
command under such authority, and is not under the control of any 
company or post commander, he is not, therefore, to be considered as 
" actually present for duty " with his company within the meaning of 
the detached-service law, even though he is in command of a detach- 
ment of the company to which he belongs or from which he was 
detached for duty on the mine planter. 
(6-124, J. A. G., Dec. 12, 1912.) 



DETACHED SERVICE: Ordnance Department; sei-vice in. 

The Army appropriation act of August 24, 1912 (37 Stat., 571), as 
amended by the joint resolution of the same date, carries a proviso 
reading in part as follows: 

"On and after December 15, 1912, in time of peace whenever any 
officer holding a permanent commission in the line of the Army with 
rank below that of major shall not have been actually present for 
duty for at least two of the last preceding six years with a troop, 
battery, or company of that branch of the Army in which he shall 
hold said commission, such officer shall not be detached nor per- 
mitted to remain detached from such troop, battery, or company, for 
duty of any kind; * * * nor shall anything in this proviso be 
held to apply to the detachment or detail of officers for duty in the 
* * * Ordnance Department * * *." 

Held, that a. captain or lieutenant of the line avIio serves under 
detail in the Ordnance Department thereby accumulates ineligibility 
for detached service in general; that in determining the officer's 
eligibility to remain on duty as a student officer at the Coast Ar- 
tillery School and therefore away from his company, after Decem- 
ber 15, 1912, the period of his service in the Ordnance Department 
within the last pi-eceding six years must be taken into account; and 
that such service may not be treated as service with a company of 
the branch in which he is commissioned. 

(6-010, J. A. G., Oct. 14, 1912.) 



DISCHARGE: For disability when soldier is under charge of desertion. 

A soldier was enrolled and mustered into the service February 27, 
1864; deserted March 27, 1864. He was arrested the same day, con- 
fined in prison, and afterwards sent to hospital, all the wdiile being 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 117 

held as a deserter. He was discharged December 5, 1864, on sur- 
geon's certificate of disability on account of bronchitis, incurred after 
enlistment. His pay accounts were suspended on account of deser- 
tion and there was nothing to show that he was relieved of the 
charge or had been placed upon military duty thereafter. Ileld^ that 
there are three kinds of discharge known to the military service: 
Honorable discharge for honest and faithful service, dishonorable 
discharge in pursuance of the sentence of a court-martial, and dis- 
charge without honor occupying a middle ground betw^een the other 
two and given where, for certain reasons due to the soldier's fault, 
he can not be honorably discharged ; and that Avhile the soldier was 
held under a charge of desertion, without restoration to duty, he 
Avas in a status of dishonor and coidd not be honorably discharged. 
His discharge w as, therefore, one w^ithout honor. 
(28-214, J. A. G., Dec. 21, 1912.) 



EIGHT-HOUR LAW: Contracts for the construction of wagons for the 
Army according' to specifications unfitting them for use by the general 
public. 

On consideration of the question as to whether or not the act of 
June 19, 1912 (37 Stat., 137), relative to the application of the eight- 
hour law for laborers and mechanics engaged on Government con- 
tracts, applied to contracts for the construction of chess wagons, 
tool wagons, and pontoon wagons which by reason of their manu- 
facture according to Government specifications are unsuitable for 
general use by the public and are not therefore ordinarily to be pur- 
chased in open market. HeJd^ that Avhile wagons manufactured 
for the Government for the purposes indicated can not be purchased 
in open market such vehicles come within the exception in the law 
which permits contracts to be made without conforming to its re- 
quirements " for such materials or articles as may usually be bought 
in open market * * * whether made to conform to particular 
specifications or not," and that specifications which make articles 
unsuitable for general use or for other than military use do not bnng 
them within the operation of the law. 

(32-313, J. A. G., Dec. 10, 1912.) 



EISTLISTED MEN: Beduction in rank of a noncommissioned officer on 
charge of desertion. 

A quartermaster sergeant absented himself without leave, was 
reported as a deserter, and Avas dropped from the rolls as such. He 
subsequently surrendered himself to the military authorities, and 
the charge of desertion against him was set aside, under orders from 
division headquarters, as having been erroneously made. Following 
his return to cluty he was officially recognized as a sergeant and per- 
formed the duties of that grade from the date of his return. Para- 
graph 277, Army Regidations. 1910, provides, inter alia^ that "The 
desertion of a noncommissioned officer vacates his position from the 
date of his unauthorized absence." 

Held., that the order setting aside the charge of desertion as having 
been erroneously made was an authoritative determination that the 



118 DIGEST OF OPINTOXS OF THE JUDC4E ADVOCATE GENERAL. 

soldier was not a deserter; and tliat paragraph 277, Army Eegii- 
lations, has, therefore, no application to this case. Held fnrth-er, 
that as no action appears to have been taken by coiupetent authority 
to reduce the soldier to the ranks, and, as his warrant as sergeant 
was not vacated as the result of his unauthorized absence, any pay 
to which he may have become entitled since his return to duty should 
be computed upon the basis of the pav of the grade of sergeant. 

(•26^520, J. A. G., Dec. 17, 191-2.) / 

Note. — This case is to be distinguished from that digested in Dig. 
Ops., J. A. G., 1912, p. 413, 1, since it did not appear in that case that 
the designation of the soldier as a deserter was an error. 



ENLISTMENT: Making- good time lost while absent without leave; com- 
puting service after expiration of enlistment. 

A soldier was absent without leave for various periods exceeding 
one day and spent a considerable time in confinement as punishment 
for such unauthorized absences, all during the period of his enlist- 
ment. After the expiration of his term of enlistment and while 
making good time lost, he absented himself without leave on various 
occasions and was in confinement for various periods awaiting trial 
and serving sentences on account thereof. The act of May 11, 1908 
(35 Stat., 109), provides that— 

"An enlistment shall not be regarded as complete until the soldier 
shall have made good any time lost during an enlistment period by 
unauthorized absences exceeding one day." 

Held, that the soldier should make good the time lost by his unau- 
thorized absences exceeding one day during his enlistment period, 
but is not required to make good time spent in confinement awaiting 
trial or undergoing punishment therefor. Held fiirfheyv that in 
making good time lost during his enlistment by such unauthorized 
absences the soldier is not entitled to count time absent without leave 
after his enlistment has expired or time spent in confinement on ac- 
count of such absence. 

(3J^052, J. A. G., Oct. 11, 1912.) 



ENS,OLLMElNrT: Date of, for United States service, of a soldier of Com- 
pany D. Eighth Pennsylvania Reserves, Civil "War. 

A soldier of Company D, Eighth Pennsylvania Reserves, was 
shown by the muster-in roll to have been mustered into the United 
States service with his company at Washington, D. C., July 29, 1861, 
said roll also showing that all members of the company with a few 
exceptions were enrolled May 1, 1861, at Brownsville, Pa. The first 
bimonthly muster roll thereafter, dated August 31, 1861, showed all 
members of the company to ha^'e been enrolled June 15, 1861, at 
Pittsburgh, Pa., and all subsequent muster rolls to June 30, 1862, 
gave the same date to the soldier's enrollment. All muster rolls 
after June 30, 1862, gave the date of the soldier's enrollment as 
May 1, 1861. He was paid by the ITnited States from July 21, 1861, 
inclusive. The State was aftei-wards reimbursed by the United 
States for the payment of the soldier from May 1 to July 20, 1861. 



DIGEST OF OPIN^IOXS OF THE JUDGE ADVOCATE GENERAL. 119 

On April 15, 18G1, the President called forth, for three months, 
T5,000 of the militia of the several States.^ May 1, 1861, may be 
l^resnmed to be the date when Pennsylvania's quota reported at the 
rendezvous. It appears that the number so reporting exceeded the 
quota, that the governor retained the excess and organized them 
into additional companies, and that this soldier " joined "' one of 
sucli companies on that date. On May 15, 18(51, the State provided 
by law for the organization of a- reserve corps composed of these 
additional companies, the members of which w^ere required to be 
enlisted in the service of the State for a period not to exceed three 
years or during the war, unless sooner discharged, and w^ere liable 
to be called into the service of the United States. The soldier with 
others of his company w^ent into camp of instruction at Camp 
Wright, Pa., on June 15, 1861, and was sworn and mustered into 
the service of the State June 21 following. The corps as organized 
was tendered to the General Government but was refused for the 
reason, among others, that the governor insisted upon the acceptance 
of the whole corps with its major general and staff officers. Finally, 
in response to a a request from the Secretary of War dated July 13, 
1861, the company on July 21, 1861, left the camp to which it had 
been ordered by the State authorities and proceeded to Washing- 
ton, D. C, where it arrived on July 23, and was musteredinto the 
United States service as stated. Under these conditions it is held — 

1. That where the rolls of a company are conflicting as to date 
of a soldier's enrollment, the circumstances attending the enrollment 
of the organization to which he belonged, including the date when 
he was taken up by the United States for paym.ent, will be taken 
into consideration in determining the true date of enrollment. 

2. Where, during the Civil War, forces were raised by the State 
for its own purposes and for the additional purpose of meeting calls 
from the Federal Government should they be made, such forces, 
if subsequently called for and accepted by the United States, should 
be regarded as having been enrolled for the United States service 
from the date when they proceeded to comply with the call. 

3. That the soldier in this case should be regarded as enrolled for 
the United States service from July 21, 1861, inclusive, when his 
com]:)any proceeded to comply with the call of the Secretary of War 
of Julv 13, 1861, from w^hich date inclusive the soldier was paid by 
the Ignited States. 

(98-111, J. A. G., Nov. 12, 1912.) 



FORAGE ALLOWANCE: For extra horse for oiRcer while attending' riding' 
school abroad. 

A second lieutenant who had been detailed to take a course of in- 
struction for one year at the Imperial Riding School in Germany, 
requested to be allowed to draw forage and other allowances for 
three mounts, he having been required to express his intention of 
providing himself with three serviceable mounts prior to his being 
ordered to said station. Held^ that under existing law forage can 
not be allowed for more than two mounts in this case, being the 
number for which forage can be issued as prescribed bv section 8 
of the act of June 18, 1878 (20 Stat., 150). 

(72-351, J. A. G., Nov. 16, 1912.) 



120 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

HEAT AND LIGHT ALLOWANCE: Furnishing same to families of Army 
oflELcers temporarily absent from their station or serving abroad. 

The authority for furnishing heat and light to officers of the 
Army is found in the act of March 2, 1907 (34 Stat., 11G7), as 
follows: 

'' Hereafter the heat and light actually necessary for the author- 
ized allowance of quarters for officers and enlisted men shall be 
furnished at the expense of the United States under such regula- 
tions as the Secretary of War may prescribe." 

The act of February 27, 1893 (27 Stat., 480), provides: 

"Hereafter officers temporarily absent on duty in the field shall 
net lose their right to quarters or commutation thereof at their 
permanent station while so temporarily absent." 

The Army Regulations provide for fuel allowances to be issued 
for heatingthe authorized quarters of officers, and also for allow- 
ances of gas and of electricity for lighting the same. 

Paragraphs 1053 and 1073, Army Eegul^tions, provide for the 
issue of said allowances to families of officers " who are temporarily 
absent, or who are on duty abroad or in Alaska." 

An officer ordered to duty in the Hawaiian Islands, as his regular 
station, desired to have his heat and light allowances issued to his 
family residing in Washington, D. C. The question was also pre- 
sented as to whether the fuel allowance could be issued to families 
of officers serving with troops at Camp Fort Bliss, Tex., away from 
the stations where they had theretofore been serving. Held^ that 
under the law and regulations an officer absent from his station on 
temporary duty or serving abroad or in Alaska, may have his heat 
and light allowances issued to his family residing in the United 
States proper upon his certificate that such allowances will not be 
otherwise drawn by him, and upon a showing that the quarters 
actually occupied by him are not heated and lighted at Government 
expense; and that on officer serving in Hawaii is serving abroad 
within the meaning of the regulations and may have such allowances 
issued to his family in the United States under the conditions above 
stated. Held further, that if officers serving at Camp Fort Bliss, 
Tex., are only temporarily separated from their permanent stations, 
their heat and light allowances may be supplied to their families 
either at their permanent stations or elsewhere upon the certificates 
and showing above stated, but that if their permanent station is at 
the place where they are serving, such allowances can not be supplied 
to their families separately, as the regulations make no provision 
therefor. 

(92-310, J. A. G., Dec. 2G and 27. 1912.) 



INDIAN COUNTRY: Introduction of intoxicating liquors into; shipment 
of wine for sacramental purposes. 

The act making appropriation for the expenses of the Bureau of 
Indian Affairs, approved August 24, 1912 (37 Stat., 519), provides: 

" Hereafter it shall not be unlawful to introduce and use wines 
solely for sacramental purposes, under church authority, at any place 
within the Indian country or any Indian reservation." 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 121 

On application by a minister of a church at Muskogee, Okla., for 
a permit for the shipment of vrine for sacramental purposes. Held, 
that this act does not require that a person introducing wine into the 
Indian Country for sacramental purposes shall obtain a permit from 
the War Department, nor does it authorize said department to issue 
such a peiTnit; and the War Department under the circumstances 
must decline to issue the same. 

(48-223, J. A. G., Nov. 4, 1912.) 



INDIAN COUNTRY: Introduction cf intoxicating' liquors into for pur- 
poses of sale. 

On application for a permit to introduce liquor for sale for medici- 
nal purposes into Melletto County, S. Dak., formerly a portion of 
the Rosebud Indian Reservation in which the same laws relative to 
the introduction of intoxicating liquors into Indian Country prevails 
for a period of 25 years from May 30, 1910, date of the act providing 
for the disposal of portions of said reservation. Held, that the au- 
thority to grant permits for the introduction of liquor into Indian 
Country given by section 2139, Revised Statutes, as amended, does 
not extend to the granting of such permits for the introduction of 
said liquors for purposes of sale. 

(48-221, J. A. G., Nov. 5, 1912.) 



INSIGNIA OF MERIT: Congressional medals of honor; evidence required 
of alleged distinguished service. 

A man who had been a corporal in the Army during the Civil War 
recently applied for a medal of honor under the provisions of section 
6 of the act of March 3, 1863 (12 Stat., 751), for distinguished service 
in action, and in support of his application offered his own unsworn 
statement containing an account of alleged distingaiished service 
upon two different occasions during the Civil War, and a paper writ- 
ing purporting to show that the tratli of said statement had been 
sworn to by three former soldiers. Held, following a prior well- 
considered opinion of this office, that the only evidence of distin- 
guished service that may now be made the basis of an award of a 
medal of honor under said section 6 are the official records of the 
War Department, and that as the official records in this case con- 
tained only the statement that the applicant, on the occasion of the 
assault upon the enemy's works in front of Petersburg on July 30, 
1864, " here captured Colonel Brown commanding a brigade of the 
enemy," which act of itself did not constitute such distinguished 
service as to entitle him to a medal of honor, the award should not be 
made. 

(46-111, J. A. G., Dec. 19, 1912.) 



LAND: Subjacent support where land is burdened by structures. 

It was reported that the private owner of property adjacent to the 
First Avenue Gate of the Presidio, San Francisco, had given notice 
that he was excavating for a residence and that he had advised the 



122 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXEEAL. 

commanding officer to take steps to secure the reservation vrall, Avhicli 
was thereby in danger of falling. Held, that under the law in force 
in the State of California with reference to subjacent support from 
adjoining land, which is substantially the same as the common law 
and the law in force at the time the Government became possessed 
of said reservation, the duty of the land owner to furnish lateral sup- 
,port to adjoining land does not extend to the additional support re- 
quired by reason of structures placed thereon, and that the additional 
work re"quired to support the soil burdened by the wall of the 
Presidio should be provided at the expense of the Government if it 
is desired to secure the premises against damage from such excava- 
tion. 

(80-260, J. A. G., Dec. 20, 1912.) 



LINE Q'E DUTY: Assuming' command v/liile absent without leave. 

A sergeant, in company with other enlisted men, left his post with- 
out leave, secured a launch, and proceeded to a nearby town, where 
some of the party became involved in a quarrel with civilians. Acting 
under authority of his rank, he directed the enlisted men to stop 
fighting and to go aboard the launch, which they did. The sergeant 
took no part in the quarrel except to endeavor to pacify the parties. 
After the launch, with the party of enlisted men on board, had pro- 
ceeded about 25 feet from the dock a shot was fired from the crowd 
of civilians who had collected on the dock. This shot took effect in 
the face of the sergeant, resulting later in his death. The 21th 
Article of War provides that — 

"All officers, of what condition soever, have power to part and quell 
all quarrels, frays, and disorders, whether among persons belonging 
to his own or to another corps, regiment, troop, batter3\ or com- 
pany, and to order officers into arrest, and noncommissioned officers 
and soldiers into confinement, who take part in the same, until their 
proper superior officer is acquainted therewith. And whosoever, be- 
ing so ordered, refuses to obey such officer or noncommissioned officer, 
or draws a weapon upon him, shall be punished as a court-martial 
may direct." 

Held, that notwithstanding the fact that the sergeant w^as in the 
status of absence without leave at the time he received the wound 
which later caused his death, said Article of War applies in his case, 
and that as he was properly in the discharge of his duty under said 
article, at the time he received his injury, he was in the line of duty 
and his death should not be regarded as the result of his own mis- 
conduct, 

(12-101, J. A. G., Nov. 30, 1012.) 



MILITIA: Radio communication; act of August 13, 1913. 

Section 1 of the act of August 13, 1912 (37 Stat., 302), regulating 
radio communication provides that the license pro\ ided for in said 
act "shall not be required for the transmission or exchange of radio- 
grams or signals by or on behalf of the Government of the United 
States." 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXERAL. 123 

Section 4 prescribes as' a restriction on " private stations '" that no 
such station "shall use a transmitting wave length exceeding two 
hundred meters, or a transformer input exceeding one kilowatt, ex- 
cept by special authority of the Secretary' of Commerce and Labor 
contained in the license of the station/' 

The radio sets supplied to the militia by the War Department have 
a wave length of about 600 meters, and it is desired to install a per- 
manent station for the signal corps of the Ohio State militia with 
power in excess of one kilowatt. Held, having in view the powers 
vested in Congress over the militia of the States and the legislation 
of Congress relating to that subject, that radio stations for the in- 
struction of the militia should not be regarded as " private stations," 
but as stations operated " on behalf of the GoA'ernment of the United 
States " Avithin the meaning of the proviso to section 1 of said act. 

(58-950, J. A. G., Oct. 12, 1912.) 



MOUNTED SERVICE: Supplying moiints to officers below the grade of 
major while serving abroad on duty requiring nrouuts. 

Two captains of Coast Artillery were serving under assignment 
witli P'rench regiments which required that officers serving therewith 
should be mounted, and the qu.estion arose as to whether mounts 
might not lawfully be provided for them while under such assign- 
ment. It was not deemed advisable by the Government to transport 
the mounts provided by these officers to the places where they were 
serving. 

By the act of May 11, 1908 (35 Stat., 108), the United States en- 
gages to furnish mounts to all officers below the grade of major re- 
quired to be mounted, but it is provided that if such officers furnish 
their own mounts they shall receive additional pay. The act of 
August 24, 1912 (37 Stat., 581), also provides for the purchase of 
horses " for remounts of officers entitled to public mounts,'' with the 
proviso that the number of horses purchased, with the number on 
hand, "shall be limited to the actual needs of the mounted service.'' 

IleJd,, that under the conditions here stated the Government might 
lawfully provide mounts for the officers in question if their duties 
required them to be mounted. 

(94-011, J. A. G., Dec. 21, 1912.) 



NEGOTIABLE INSTRUMENTS: Payment of stolen check when indorsed 
in blank and in the hands of an innocent purchaser. 

An officer's official pay check was indorsed in blank and delivered 
to another officer in payment of an account, and without further in- 
dorsement was stolen and subsequently discounted by an innocent pur- 
cliaser. Ileld^ that the check so indorsed became available for trans- 
fer by anyone into whose hands it might fall, and that an innocent 
purchaser taking the paper in good faith in the ordinary course of 
business would obtain a good title thereto, notwithstanding it might 
liave been stolen from the real owner. 

(52-011, J. A. G., Oct. 5, 1912.) 



124 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

PANAMA CANAL: Sending a board of officers or employees of the United 
States to Guayaquil, Ecuador, to investigate and report upon the sani- 
tary conditions of a foreign port. 

It having been suggested that an officer of the Medical Corps of the 
Army with certain employees of the Isthmian Canal Commission be 
sent to the port of Guayaquil, Ecuador, and employed in connection 
with a plan of sanitation of said port, and it further appearing that 
the Government of Ecuador Avas prepared to meet the whole or a 
portion of the expenses connected with such work. Ilehh that there 
is no legal objection to the action of the Secretary of War in ordering 
an Army medical officer, or to the action of a chairman of the Isth- 
mian Canal Commission in ordering necessary civilian employees 
serving under him, to said city for the purpose of examining into the 
sanitary conditions thereof, and of suggesting a method of sanitation 
therefor and also of making a report to the United States, all at the 
expense of the United States ; but no officer of the Armj^ nor any civil 
employee of the United States may, without authority of Congress, 
accept any pay or emolument from any foreign government, and 
there is no method whereby a foreign government may pay the 
United States for the use of its officers or employees, although such ai; 
arrangement might be made bv treaty. 

(64-313, J. A.^G., July 8, 1912.) 



PATENTED INVENTIONS: Use by the United States of inventions pat- 
ented by employees of the Government. 

An engineer officer of the United States devised and patented a 
reinforced concrete pile Avhile such officer, but developed his patent 
at his own expense and at times outside of his regular work under 
the Engineer Department. The act of Congress approved June 25, 
1910 (36 Stat., 851), authorizes suits to be brought against the United 
States for the infringement of patent rights, with the i)roviso that 
the act shall not " apply to any device discovered or invented by an 
employee of the United States during the time of his employment 
or service." 

Held, that where a person in the employ of the Governm_ent not 
specifically employed for the purpose, at his owm expense and outside 
of his regular working time for the Government, makes and patents 
an invention, he is entitled to the benefit thereof when used by the 
Government and may be paid a ro3^alty therefor, although he can 
not sue the United States for infringement. 

(70-340, J. A. G., Oct. 16, 1912.) 



PAY CLERKS: Official status of, in the Army; right to purchase ordnance 
stores. 

On application for a decision as to whether Army pay clerks are 
officers of the Army within the meaning of the statutes and regula- 
tions so as to entitle them to purchase ordnance stores for their ovvn 
use. Ileld^ that a pay clerk in the Army occupies a military status 
and nuist be deemed an officer of the Army in the sense that he has a 
military status and is not an enlisted man or cadet, althougli not a 
commissioned officer; and as there is nothing in the statutes or regu- 



DIGEST OF OPINIONS OF THE JUDf4E ADVOCATE GENEEAL. 125 

lations providing for the sale of ordnance stores to officers for their 
ov/n use in the service which wonkl limit the sale to commissioned 
officers, pay clerks are entitled to purchase ordnance stores for their 
own use in the military service. 
(80-136, J. A. G., Oct. 25, 1912.) 



PAY CLERKS: S,etireir.ent of, for disability originating prior to act 
authorizing such retirement. 

All examining board found a pay clerk of the Army incapacitated 
for active service, said incapacity having originated prior to the 
passage of the act of March 3, 1911 (36 Stat., 1044), giving such 
clerks the same pay and allowances as Navy paymasters' clerks on 
shore duty, together with the same right to retirement and retired 
pay as is allowed such Navy paymasters' clerks. Held, that the 
effect of said act of March 3, 1911, is to recognize the service of 
Army paymasters' clerks prior to March 3, 1911, as service ^A^thin 
the meaning of sections 1453 and 1454, Revised Statutes, and that the 
letirement of the clerk may be based upon disability incurred while 
engaged in such prior service. 

(6-134, J. A. G., Dec. 27, 1912). 



PUBLIC LANDS: Leases of. 

Section 9 of the river and harbor act of March 3, 1909 (35 Stat., 
819), gives the Secretary of War authority to grant leases or licenses 
not exceeding 20 years in duration " for the occupation of such land 
belonging to the United States on " the Wabash River, 111., " as may 
be required for mill sites or other industrial purposes not inconsistent 
with the requirements of navigation.'' 

Application was made for a lease of a portion of the property of 
the United States at the lock and dam in the Wabash River at Mt. 
Carinel, 111., for the purpose of drilling for oil and gas. Held., that 
the term " other industrial purposes " contained in the above act must 
be construed in connection with the associated item " mill sites " 
which it follows, and the authority to lease for such purposes must 
be restricted to mill sites or other manufacturing purposes having 
some relation to the utilization of water power, and that the statute 
does not give authority to lease for the purposes applied for. 

(80-723, J. A. G., Oct. 14, 1912.) 



PUBLIC PEOPESTY: Protection ofj in the construction of an emergency 
levee. 

Owing to the subsidence of a levee in front of a military reserva- 
tion at Jackson, Miss., it became imperative to construct an emer- 
gency levee across a portion of the reservation and to utilize a portion 
thereof as a base for such levee, and also to destroy or remove certain 
buildings on the reservation. HeM^ that as the property was to be 
taken for the protection not only of the public but also of Govern- 
ment property, the levee commissioners of the district might lawfully 
be authorized to construct the proposed work, but that the laying out 



126 DIGEST or OPINIONS OF THE JUDGE ADVOCATE GENERAL, 

of a street through the reservation to repUice aiiotiier one should be 
submitted to Congress for authorization. 
(80-816.7, J. A. G., Nov. 12, 1912.) 



QUABTERMASTEB COUPS: Appropriations for tlie tliree constituent de- 
partments; availability for the consolidated corps. 

The Army appropriation act of August 21. 1912, made separate 
appropriations for subsistence under the head of the Subsistence 
Department and for regular supplies under the head of the Quarter- 
master's Department in language similar to that employed in mak- 
ing appropriations for the same purposes in previous years. (37 
Stat., 578 and 579.) The subsistence Department and the Quarter- 
master's Department, together with the Pay Department, vere by 
the same act consolidated into the Quartermaster Corps, and it was 
further provided (p. 594) that — ■ 

" The appropriations herein provided for the several departments 
consolidated in this act shall be a^'ailable for the consolidated corps 
herein created.'' 

Upon consideration of the question of the method of expending the 
{appropriations for subsistence and for regular supplies, in view of 
the consolidation and in view of the provision with reference to the 
availability of the separate appropriations. Advised., that the more 
specific language used in one appropriation would not operate to 
exclude the use of the other appropriation, which might provide for 
the same object in more general terms, but that as the needs of the 
consolidated corps are now the same as those of the three constitu- 
ent departments, the appropriations made separately for each de- 
partment are now available for all. Advised further., that where 
the language of either of the appropriations fairly covers an object, 
it may be used for that object, regardless of whether such object was 
formerly under the administration of the department for which the 
appropriation to be used was oria'inallv made or not. 

(6-224, J. A. G., Nov. 19, 1912.) 



QUAETEEM ASTER CORPS: Duties therein; availability of line officers for. 

Section 3 of the act of August 21. 1912 (37 Stat., 591-593), after 
providing, inter aUa., for the consolidation of the office establish- 
ments of the Quartermaster General, the Commissary General, and 
the Paymaster General of the Army into a single bureau of the War 
Department: for the consolidation of the Quartermaster's, Subsist- 
ence, and Pay Departments of the Army into a single corps to be 
known as the Quartermaster Corps of the Army : and for an ultimate 
reduction in the number of officers Avho originally constitute the 
Quartermaster Corps as a result of the consolidation, continues: 

" Provided further, that whenever the Secretary of War shall de- 
cide that it is necessary and practicalile, regimental, battalion, and 
squadron quartermasters and commissaries shall be required to per- 
form any duties that junior officers of the Quartermaster Cor])s may 
Ijroperly be re(iuired to perform, and regimental and battalion (luar- 
termaster and commissary sergeants shall be required to perform any 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 127 

duties that noncommissioned officers or pay clerks of the Quarter- 
master Corps may properl}^ be required to perform, but such regi- 
mental, battalion, and squadron quartermasters and commissaries 
shall not be required to receipt for any money or property which 
does not pertain to their respective regiments, battalions, or squad- 
rons, and they shall not be separated from the organization to which 
they belong : * * * " 

Held^ that although the clause "whenever the Secretary of War 
shall decide that it is necessary and practicable, regimental, bat- 
talion, and squadron quartermasters and commissaries shall be re- 
quired to perform any duties that jiuiior officers of the Quaiter- 
master Corps may properly be required to perform," is affirmative 
in form, its effect is prohibitive as well as affirmative; that, giving 
the broadest application to the implied prohibition, it would serve 
to forbid the detail of any officers except those s]oecifically mentioned 
in the clause to perform duties that officers of the Quartermaster 
Corps ma}^ properly be required to perform, but that, as the affirma- 
tiA'e provision relates only to officers belonging to branches of tlie 
Army which have a regimental, battalion, or squadron organization, 
the implied prohibition should be construed as relating only to the 
same branches; that the legislation under consideration does not af- 
fect the availability of any officers for Quartermaster Corps duty 
except those belonging to the mobile branches of the line of the 
Army, and, therefore, all officers, except those belonging to the mo])ile 
branches of the line, may continue hereafter, as heretofore, to be 
employed upon Quartermaster Corps duties, including the duties of 
post quartermasters, when their employment is necessary to supple- 
ment the services of the personnel of the Quartermaster Corps ; that 
regimental, battalion, and squadron quartermasters and commis- 
saries may, under the specific terms of this legislation, be required 
to perform any duties that may properly be required of junior offi- 
cers of the Quartermaster Corps, including the duties of post quar- 
termasters, provided such officers be not required to receipt for money 
or property not pertaining to their respective organizations and are 
not separated therefrom; that officers commissioned in the mobile 
branches of the line of the Army but detached therefrom under the 
provisions of law and replaced in their respective branches under 
the provisions of section 27 of the act of February 2, 1901 (31 Stat., 
755), may, as occasion arises, be required to perform Quartermaster 
Corps duties properly incident to the duties for the performance 
of which they are detached, but may not be detached for the purpose 
of assigning to them duties pertaining to the Quartermaster Corps; 
and that all other officers of the mobile branches of the line of the 
Army are within the implied prohibition of the new statute and may 
not 'oe charged with Quartermaster Corps duties. 

Held also^ that within the meaning of this legislation there is no 
difference between a memorandum receipt which renders the officer 
giving it responsible, though not accountable, for the property or 
funds receipted for and a receipt which renders him accountable as 
well as responsible; and that regimental, battalion, and squadron 
(juartermasters and commissaries may not be required to give mem- 
orandum receipts for money or property not pertaining to their 
lespective organizations. 



128 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Held further^ that in the sense of this legish\tion the line of de- 
marcation which separates money or property pertaining to a regi- 
ment, battalion, or squadron from other money or property is the 
line wiiich separates money or propertj^ necessary and proper for the 
use, preparation, and maintenance of the regiment, battalion, or 
squadron as a mobile unit of the Army from money or property used 
or intended for other purposes. 

(6-224, J. A. G., Dec. 20, 1912.) 



QUARTERM ASTER CORPS: Enlisted men in; counting time of civilian 
service of persons enlisting- therein to take the place of civilian em- 
ployees. 

Section 4 of the Army appropriation act of August 24, 1912 (37 
Stat., 593), provides for the enlistment in the Quartermaster Corps 
of men to take the place of certain civilian employees and detailed 
enlisted men rendering service in the Quartermaster's Department of 
the Army. Ileld^ that service as a civilian employee in the Quarter- 
master's Department prior to enlistment in the Quartermaster Corps 
under the provisions of said section can not be counted as enlisted 
service either for the purpose of computing longevity pay after en- 
listment or for the purpose of retirement. 

(6-224.1, J. A. G., Dec. 4, 1912.) 



QUARTERMASTER CORPS: Enlisted men; sergeants of the Quartermaster 
Corps and quartermaster serg-eants. 

Section 3 of the Army appropriation act of August 24, 1912 (37 
Stat., 592), pi-ovides that — 

" The noncommissioned officers now known as post quartermaster 
sergeants and post commissary sergeants shall hereafter be known as 
quartermaster sergeants " who shall " continue to have the same pay, 
allowances, rights, and privileges" then allowed them by law. 

Section 4 of the same act {idem, p. 593) provides for the enlistment 
of not to exceed 6.000 men in the Quartermaster Corps, constituted 
by said act, including 600 sergeants (first class) and 1,005 sergeants. 

Held, that the sergeants whose enlistment is authorized by section 
4 of the act are a distinct grade from those formerly knov^-n as post 
(juartermaster sergeants and post commissary sergeants, and that no 
change was made by the law in the status, pay, or allowances of the 
latter grade, but duties formerly pertaining to post commissary and 
post quartermaster sergeants may now be performed by any of them 
under their designation of quartermaster sergeants. 

(6-224.1, J. A. G., Nov. 30, 1912.) 



QUARTERMASTER CORPS: Officers of; when reduction in the number 
becomes effective. 

Section 3 of the Army appropriation act of August 24, 1912 (37 
Stat., 591), consolidates the Quartermaster's, Subsistence, and Pay 
Departments of the Army into one body to be known as the Quarter- 
master Corps of the Army, and makes applicable to such corps the 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENEKAL. 129 

provisions of sections 26 and 27 of the act of February 2, 1901 (31 
Stat., 755), regarding details for filling vacancies therein. Said sec- 
tion 3 further provides that no details to fill vacancies occurring in 
said consolidated corps shall be made until certain prescribed reduc- 
tions in the number of officers in the corps, in grades from colonel to 
captain, inclusive, shall have been accomplished, and a proviso is 
added that it shall be the duty of the Chief of the Quartermaster 
Corps therein provided for, under the direction of the President and 
the Secretary of War, "to put into effect the provisions" of said 
section " not less than sixty days after the passage" of said act. 

Held^ that the provisions of said section regarding details to the 
Quartermaster Corps became effective immediately upon the passage 
of the act, and that thereafter no details to the consolidated corps 
or to its constituent parts could be made to fill vacancies occurring 
therein, until the prescribed reduction in the number of officers 
therein had been accomplished. 

(6-011, J. A. G., Oct. 8, 1912.) 



QUARTERMASTER CORPS: Promotion; date of vacancies. 

Section 3 of the act of August 24, 1912 (37 Stat., 591), reads in 
part as follows: 

" * * * The Quartermaster's, Subsistence, and Pay Depart- 
ments of the Army are hereby consolidated into and shall hereafter 
be known as the Quartermaster Corps of the Army. The officers of 
said departments shall hereafter be known as officers of said corps 
and by the titles of the rank held by them therein, and, except as 
hereinafter specifically provided to the contrary, the provisions of 
sections twenty-six and twenty-seven of the Act of * * * Feb- 
ruary 2, 1901 * * * {^rg hereby extended so as to apply to the 
Quartermaster Corps in the manner and to the extent to which they 
now apply to the Quartermaster's, Subsistence, and Pay Depart- 
ments, * * *, The officers now holding commissions as officers 
of the said departments shall hereafter have the same tenure of com- 
mission in the Quartermaster Corps, and as officers of said corps 
shall have rank of the same grades and dates as that now held by 
them, and, for the purpose of filling vacancies among them, shall con- 
stitute one list, on which they shall be arranged according to rank. 
So long as any officers shall remain on said list any vacancy occurring 
therein shall be filled, if possible, from among such officers, by selec- 
tion if the vacancy occurs in a grade above that of colonel, and, if the 
vacancy occurs in a grade not above that of colonel, by the promotion 
of an officer who would have been entitled to promotion to that par- 
ticular vacancy if the consolidation of departments hereby pre- 
scribed had never occurred ; * * * Provided further^ that not to 
exceed six officers holding commissions with the rank of captain in 
the Quartermaster Corps and who have lost in relative rank through 
irregularities of promotion and the operation of separate promotion 
within the three departments hereby consolidated, may, in the dis- 
cretion of the President and subject to examination for promotion as 
prescribed by law, be advanced to the grade of major in the Quarter- 
master Corps, * * * : And provided further^ that for the purpose 

93668°— 17 9 



130 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

of carrying into effect the provisions of this section the President is 
hereb}^ authorized to appoint, by and with the advice and consent of 
the Senate, the Chief of the Quartermaster Corps herein provided for 
immediately upon the passage of this Act, and it shall be the duty of 
the said chief, under the direction of the President and the Secretary 
of War, to put into effect the provisions of this section not less than 
sixty days after the passage of this Act." 

On February 16, 1912, a vacancy occurred in the grade of lieutenant 
colonel in the Pay Department. On August 27, 1912, the senior 
major of the former Pay Department was promoted to fill this va- 
cancy, with rank from February 16, 1912. There was no captain 
holding a permanent commission in the Pay Department. Under the 
consolidation act a captain theretofore commissioned as a captain, 
in the Subsistence Department became the senior captain in the 
Quartermaster Corps. 

Held^ that there being no captain on the permanent list of officers 
of the former Pay Department, the senior captain permanently be- 
longing to the Quartermaster Corps may at the proper time be pro- 
moted to fill the vacancy in question, but that his right to promotion 
can not be held to antedate the time at which section 3 of the act of 
August 24, 1912, supra^ which made the position available for him, 
becomes administratively effective. 

Held further^ that the advancement of the six captains for which 
special provision is made in section 3 of the act of August 24, 1912, 
must be deferred until the date when the said section is put into 
administrative effect, and that the rank of said officers as majors in 
the Quartermaster Corps can not antedate the latter date, 

(6-224, J. A. G. Sept. 13 and Oct. 2, 1912.) 



QUARTERMASTER CORPS: Quartermaster sergeants; filling vacancies 
in the grade of. 

Section 1142, Eevised Statutes, provides for the selection of com- 
missary sergeants from among the sergeants of the line who have 
served faithfully therein for five years, three of which shall have 
been in the grade of noncommissioned officer. The act of July 5, 1884 
(23 Stat., 109), provides for the appointment of post quartermaster 
sergeants upon the recommendation of the Quartermaster General, 
the same to be selected by examination from among the most com- 
petent enlisted men of the Army having at least four years' service, 
and whose character and education shall be such as to fit them to take 
charge of public property and to act as clerks and assistants to post 
and other quartermasters. Commissary sergeants were afterwards by 
law designated as post commissary sergeants and included in the 
Subsistence Department, and post quartermaster sergeants were by 
law incorporated into the Quartermaster's Department. Section 3 
of the Army appropriation act of August 24, 1912 (37 Stat., 591), 
consolidates the Quartermaster's, Subsistence, and Pay Departments 
of the Army into a single corps, to be loiown as the Quartermaster 
Corps, and changes the designations of post commissary sergeants 
imd post quartermaster sergeants to quartermaster sergeants. It pro- 
vides also that the duties now required by law to be performed by 
officers of said several departments shall hereafter be performed by 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 131 

such officers of the Quartermaster Corps as the Secretary of War 
may designate for that purpose. Held^ that the consolidation of said 
departments into a single corps and the changing of the designation 
of said sergeants to that of quartermaster sergeant did not repeal the 
requirements regarding the appointment of said sergeants, respec- 
tively, and that in filling the position of quartermaster sergeant in 
the consolidated corps the requirements of both of said statutes with 
respect to the qualifications and methods of selection should be ob- 
served, adopting the higher qualifications and observing the more 
restricted field of selection when the two statutes contain different 
provisions upon the subject. 

(6-224, J. A. G., Oct. 16, 1912.) 



TRAVEL ALLOWANCES: To discharged soldiers; commutation of sub- 
sistence to place of enlistment; throug-h. transportation. 

The Army appropriation act of August 24, 1912 (37 Stat., 576), 
provides " for travel allowance to enlisted men on discharge," adding 
the proviso that — 

" Hereafter when an enlisted man is discharged from the service, 
except by way of punishment for an offense, he shall be entitled to 
transportation in Idnd and subsistence, from the place of his dis- 
charge to the place of his enlistment, or to such other place within 
the continental limits of the United States as he may select, to which 
the distance is no greater than from the place of discharge to place 
of enlistment." 

Held^ that the Government is not limited to furnishing subsistence 
in kind but may commute the same at the rate of three meals for 
each 24 hours' travel at a certain rate per meal (Dec. Comp. of the 
Treas., Oct. 12, 1912). Held further^ that the Government is bound 
to furnish transportation in kind to the place to which the discharged 
soldier is entitled to be transported, if upon some public line of 
transportation, although it may not be possible to secure through 
transportation at the place of discharge from such place to the place 
of destination. 

(94-330, J. A. G., Nov. 22, 1912.) 



TRAVEL ALLOWANCES: To discharged soldiers; transportation and sub- 
sistence to place of enlistment. 

The act of August 24, 1912 (37 Stat., 576), provides that an en- 
listed man discharged, except by way of punishment for an offense, 
shall be entitled to transportation in kind and subsistence from the 
place of discharge to the place of his enlistment, or — 

" To such other place within the continental limits of the United 
States as he may select, to which the distance is no greater than from 
the place of discharge to place of enlistment." 

Held^ that such transportation and subsistence must be furnished 
without regard to the cost, but that the Government is not called 
upon to furnish transportation to points reached only by private 
conveyances, and the statute is satisfied by furnishing the same to 
some place upon a line of public transportation nearest to the place 
selected by the soldier. 

(94-332, J. A. G., Oct. 28, 1912.) 



132 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

VOLUNTEER ARMY: Attendance at Army Service School of officer of the 
Organized Militia holding certificate of fitness for commission in. 

A captain in the Organized Militia of a State held a certificate 
of fitness for a commission as lieutenant colonel in the Volunteer 
Army, obtained by examination in pursuance of section 23, act of 
January 21, 1903 (32 Stat, 779). Said section provides that the 
President may authorize persons examined and found fitted for the 
command of troops or the performance of staff duties, and certified 
as provided in said section, to pursue a regular course of study at 
any military school or college of the United States, except the Mili- 
tary Academy at West Point. Such person is, while so attending, 
entitled to the same travel allowances, and quarters or commutation 
thereof, as officers of the Regular Army under similar conditions. 
The purpose of said section is to secure a list of persons qualified to 
hold commissions " in any volunteer force * * * other than a 
force composed of Organized Militia," and the act further provides 
that the appointments provided for " shall not be deemed to include 
appointments to any office * * * of the Organized Militia which 
volunteers as a body." Held, that so long as the applicant retains his 
status as an officer of the Organized Militia he will not be eligible 
for appointment as contemplated by said section 23, and therefore 
does not come within the provisions of said section; and having in 
view section 16 of the same act, which makes provision for the at- 
tendance of officers of the Organized Militia at Army service schools. 
Held further, that if the applicant in this case should be designated 
to attend such school it must be in his capacity as an officer of the 
Organized Militia, and that while so attending he would be entitled 
only to the allowances pertaining to his grade as such officer. 

(58-411, J. A. G., Dec. 19, 1912.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

ACCOUNTABILITY: Loss by abrasion of gold coin shipped by a quarter- 
master for deposit in a United States subtreasury. 

A United States Army quartermaster consigned to the United 
States subtreasury at San Francisco, Cal., for deposit, certain moneys 
among which was about $500 in gold coin. The assistant treasurer 
at San Francisco reported the receipt of the remittance, and stated 
that the deposit contained light weight gold coin which had de- 
preciated in value to the extent of 20 cents, which sum he had de- 
ducted from the nominal value of the total remittance. The limit of 
tolerance for reduction in weight of gold coin by natural abrasion is 
fixed by statute, below which the coin will not be received at its 
nominal face value by the United States Treasury, and can only be 
received for recoinage at the mint at its bullion value. Held, that 
gold coin being standard money, is not redeemable ; that the assistant 
treasurer could not be required to accept the coin for deposit for a 
greater sum than he could receive credit for at the mint for recoinage ; 
and that there is no way to reimburse the depositor for the loss in 
weight, assuming that the same has been correctly stated. 

(Comp. of the Treas., Nov. 29, 1912). 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 133 

APPROPRIATIONS: For seacoast defenses and for barracks and quarters, 
Philippine Islands. 

A provision in the sundry civil appropriation act of August 24, 
1912 (37 Stat., 438), for the fiscal year 1913 reads as follows: 

" Military Posts : For continuing the construction of the necessary 
accommodations for the seacoast artillery in the Philippine Islands, 
$250,000."^ 

A provision in the Army appropriation act of August 24, 1912 
(37 Stat., 584), for the same fiscal year reads: 

" Barracks and Quarters, Philippine Islands : Continuing the work 
of providing for the proper shelter and protection of officers and en- 
listed men of the Army of the United States lawfully on duty in the 
Philippine Islands, * * * $500,000." 

Upon submission of the question as to whether the appropriation 
contained in the sundry civil act could be used for the construction 
of barracks and quarters for a regiment of infantry on Corregidor 
Island. Held, that said appropriation is not available for the con- 
struction of any buildings except those required for the proper 
shelter and protection of the seacoast artillery. The words " Mili- 
tary Posts " did not have the effect of enlarging the scope of said 
appropriation beyond that specifically pointed out in the statute, 
viz, "the construction of the necessary accommodations for the sea- 
coast artillery in the Philippine Islands." 

(Asst. Comp. of the Treas., Nov. 30, 1912.) 



CLERKS AND EMPLOYEES: Payment from lump-sum appropriations; 
transfer and promotion. 

Section 7 of the general deficiency act of August 26, 1912 (37 
Stat., 626), provides that — 

" Nor shall any person employed at a specific salary be hereafter 
transferred and hereafter paid from a lump-sum appropriation at a 
rate of compensation gi'eater than such specific salary." 

Held, that a clerk or other employee receiving a specific salary who 
is transferred to a position paid from a lump-sum appropriation can 
not thereafter be promoted to another position paid from such 
appropriation and carrying a higher rate of compensation. 

(19 Dec. Comp., 163.) 



COMMUTATION OF QUARTERS: Providing the same in kind where an 
officer is assigned to a duty stated to be temporary. 

An officer was directed by special orders '" To proceed at the 
proper time to West Point, N. Y., and report in person August 27, 
1912, to the Superintendent of the United States Military Academy 
for temporary duty until December 2, 1912," and then to return to 
his proper station. Upon reporting as directed and applying for 
quarters he was informed that " On account of shortage of quar- 
ters at this post it will not be practicable to make assignment in 
the bachelor officers' quarters to an officer ordered here for tem- 
porary duty. You will be assigned a room in the Cullom Memorial 
Hall upon reporting August 27." 



134 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Cullom Memorial Hall is the property of the United States. 
Ileld^ that the furnishing of this room wasi the furnishing of 
quarters in kind and the equivalent of commutation of quarters, 
and that this precluded the officer from receiving such commutation 
at Dallas, Tex., where he had previously been stationed. 

(Comp. of the Treas., Oct. 31, 1912.) 



HEAT AND LIGHT ALLOWANCE: Furnishing' same to families of officers 
of the Navy during- absence of such officers from their permanent sta- 
tions. Furnishing same in vicinity of station. 

The act of March 2, 1907 (34 Stat., 1167), provides— 

" That hereafter the heat and light actually necessary for the 
authorized allowance of quarters for officers and enlisted men (of 
the Army) shall be furnished at the expense of the United States 
under such regidations as the Secretary of War may prescribe." 

The act of February 27, 1893 (27 Stat., 480), provides that— 

" Officers (of the Army) temporarily absent on duty in the field 
shall not lose their right to quarters or commutation thereof at 
their permanent station while so temporarily absent." 

By law, officers of the Navy are entitled to the same pay and 
allowances as officers of corresponding rank in the Army. 

Paragraph 1052, Army Regulations, 1910, provides for furnishing 
fuel for the authorized quarters of officers, and paragraph 1053 pro- 
vides that — 

" The Quartermaster's Department may issue or sell fuel in accord- 
ance with the preceding paragraph * * * to families of officers 
who are temporarily absent, or who are on duty abroad or in Alaska, 
on a written certificate of the officer that the amount of his allow- 
ance covered by the certificate will not be otherwise drawn by him. 
Officers on sick leave, or under sentence of suspension from duty 
on reduced pay when absent from their proper stations, are not en- 
titled to this privilege. * * * •' 

Paragraph 1073 of the same regulations provides for furnishing 
gas and electricity for lighting purposes in accordance with the pro- 
visions of said paragi*aph to families of officers under the same 
conditions as are prescribed in paragraph 1053 for furnishing them 
with fuel. 

An officer of the Navy stationed at Baltimore, Md., and claiming 
commutation of quarters at that place, boarded at Washington, 
D. C, going to and from his place of duty each day. He main- 
tained no quarters in Baltimore. Held, that as Baltimore is easily 
accessible by train from Washington, the latter place might properly 
be considered as within the vicinity of the officer's regular station, 
and that payment might lawfully be made for furnishing heat and 
light to the officer's family at the place of his residence according 
to the regulation allowance. 

Certain other officers of the Navy whose permanent station was 
at Annapolis, Md., were absent during various periods of time from 
their regular station on temporary duty or on leave. Heat and 
light were furnished to the families of these officers or to mem- 
bers thereof at places other than their regular station, according to 
regulation allowance. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 135 

Held,, that the law nowhere makes provision for the family of an 
officer separately and apart from the officer, and that payments for 
heat and light furnished as the allowance of officers absent on tem- 
porary duty or on leave and supplied to their families at places 
other than their regular stations can not be allowed. 

(Asst. Comp. of the Treas., Oct. 28, 1912.) 



TAXATION": Duty, under the Philippine tariff, on jute bags used as con- 
tainers of United States property. 

The Quartermaster's Department shipped from the United States 
to the depot quartermaster in the Philippines a quantity of oats in 
jute bags for the use of the Army. These oats were grown in the 
United States, but the bags in which they were contained had been 
manufactured in the United States from imported raw material 
and a drawback of the duties assessed thereon had been allowed under 
the general customs tariff laws of the United States. The Philip- 
pine Government claimed that duty should be paid on the bags 
containing the shipment of oats at the rate of 2 cents each under the 
Philippine tariff act of August 5, 1909 (36 Stat., 130), which, unlike 
the i:)receding act of March 3, 1905 (33 Stat., 974), omits to include 
in its free list supplies imported by the United States Government 
for its use. Section 8 of said act of 1909 provides (p. 137) — 

" That the rates of duties to be collected on articles, goods, wares, 
or merchandise * * * going into said islands from the United 
States or any of its possessions except as otherwise provided in this 
act, shall be as follows: * * * 

" Gunny sacks, each two cents" {iderrh,) p. 150.) 

Exceptions to the payment of duty are made in said act as fol- 
lows : 

" No duties shall be assessed on account of the usual coverings or 
holdings of articles, goods, wares, or merchandise dutiable otherwise 
than ad valorem,, nor those free of duty, except as in this act ex- 
pressly provided." (Rule 13 (A), sec. 2, iderri^ p. 135.) 

"The following articles shall be free of duty upon the importa- 
tion thereof into the Philippine Islands upon compliance with regu- 
lations which shall be prescribed in accord with the provisions of 
each paragraph. * * * 

" 351. Coverings and holdings of articles, goods, wares, and mer- 
chandise (usual), except as expressly provided." (Sec. 11, idem,, pp. 
172, 173.) 

" That all articles, except rice, the growth, product, or manufac- 
ture of the United States and its possessions, to which the customs 
tariff in force in the United States is applied and upon which no 
drawback of customs duties has been allowed therein, going into the 
Philippine Islands shall hereafter be admitted therein free of cus- 
toms duty when the same are shipped directly from the country of 
origin to the country of destination." (Sec. 12, ideifn,, p. 173.) 

Held,, that the exceptions mentioned in said rule 13 (A) in section 
2 and in section 11 do not apply to the usual coverings which the 
act expressly makes dutiable, and therefore do not apply to gunny 
sacks which are specifically made dutiable; and that as a drawback 
of the customs duty had been allowed in the United States on the 



136 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

gunny sacks in question, they do not come within the exception 
named in section 12 of the act. Jute bags are, therefore, dutiable 
imports, and the duty, if otherwise properly assessed, should be paid. 
(Comp. of the Treas., Nov. 8, 1912.) 



TRAVEL ALLOWANCE: On discharg-e; election of enlisted man of Marine 
Corps to take mileage instead of transportation; travel between Alaska 
and the United States. 

The act of June 12, 1906 (34 Stat., 247), provides that for the 
purpose of determining allowances for all travel of enlisted men on 
discharge, travel — 

"• between the United States and Alaska shall not be regarded as sea 
travel and shall be paid for at the rates established by law for land 
traA'el w^ithin the boundaries of the United States." 

The law at that time allowed an enlisted man, on discharge, mile- 
age at the rate of 4 cents a mile from place of discharge to place of 
enlistment or original muster into the service, except for sea travel. 
The act of August 24, 1912 (37 Stat, 576), provides that all soldiers 
on discharge shall receive transportation in kind and subsistence in 
lieu of the mileage theretofore allowed " or. in lieu of such trans- 
portation and subsistence, he shall, if he so elects, receive two cents a 
mile, except for sea travel, from the place of his discharge to the 
place of his enlistment." 

By section 1612, Revised Statutes, enlisted men of the Marine 
Corps are entitled to the same allowances on discharge as enlisted 
men of the Army. 

A quartermaster sergeant in the Marine Corps enlisted in Alaska 
and was discharged in Boston, Mass. Held^ that he was entitled, 
on his election, to mileage at the rate of 2 cents a mile from place 
of discharge in Boston, Mass., to Sitka, Alaska, where he had en- 
listed, including such mileage for sea travel between the United 
States and Alaska. 

(Comp. of the Treas., Oct. 31. 1912.) 



OPIinONS OF THE ATTORITEY GENERAL. 

(Digests prepared In the office of the Judge Advocate General.) 

EIGHT-HOTTE, LAW: Act of June 19, 1912, as applied to laborers employed 
on dredges. 

Section 1 of the act of June 19, 1912 (37 Stat., 137), requires that 
all Government contracts shall contain a provision that the con- 
tractor shall not permit any " laborer or mechanic doing any part 
of the work contemplated by the contract " to work thereon more 
than eight hours in any one calendar day, and a penalty is pre- 
scribed, to be collected from the contractor for violation of the law. 
Said section further requires that any officer or person designated 
as inspector of the woi-k under such contract, or to aid in enforcing 
the fulfillment thereof, shall forthwith report all violations of the 
act, with a view to the collection of the penalty. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 137 

I'pon consideration of the question as to whether persons em- 
ployed ujion a dredge employed in Government work should be con- 
sidered as "' laborers or mechanics " within the meaning of the law, 
and also as to whether cases where contractors had required or per- 
mitted such persons to labor more than eight hours in any one calen- 
dar day should be reported in pursuance of the act. Held^ that by 
the established rule of the Federal courts all persons regularly em- 
ployed npon a dredge to assist in its operations as such are seamen 
and not " laborers or mechanics," and that the nature of their duties 
makes no difference in the rule. See Eastern Dredging Co.. v. United 
States, 206 U. S., 246. 258, et seq. Held further, that the act of June 
19, 1912. should receive the same construction as that given in said 
decision to the act of August 1, 1892, and that the laborers and me- 
chanics therein mentioned do not include laborers upon dredges, 
which latter are to be classed as seamen, who do not come within 
the operation of the law. It Avill not be necessary, therefore, to re- 
port the cases of any persons working upon dredges more than eight 
hours a day when engaged upon dredging work under a Government 
contract. 

(Atty. Gen., Nov. 27, 1912.) 



EIGHT-HOUR LAW: Work contemplated by the contract; contracts for the 
purchase of projectiles and smokeless powder. 

The Secretary of the Navy requested an opinion as to whether 
section 1 of the act of June 19, 1912 (37 Stat., 137), contemplates 
that laborers and mechanics shall not be requii-ed nor permitted to 
AYork more than eight hours a day on work generally, or only said 
length of time daily upon work contemplated by the Government 
contract; that is, Avhether a mechanic, after working eight hours in 
one calendar day upon work covered by a Government contract, may 
not, without violating the eight-hour restriction, labor for a further 
period upon work which the Government contractor may be doing 
for private parties or for the Government under another contract. 
An opinion was further desired as to whether the law included work 
other than that directly contemplated by the contract, such as work 
in the production and segregation of the materials required, or in the 
operation of a plant used in the work of the contract; also, wjiether 
the law applied to contracts for the purchase of projectiles and 
smokeless powder, it being stated that there is no sale in this country 
for such articles except to the Government, that projectiles are deliv- 
ered to the Government in the shape of finished, treated forgings 
which are to be fused and loaded to place them in a condition for 
service, and that the Government manufactures regularly a large 
proportion of the smokeless powder used by it. 

Held, (1) that the eight-hour workday restriction of the act of 
June 19, 1912, known as the eight-hour law, applies only to work 
contemplated by the contract — that is, work directly and proximately 
in view of the contract as specifically appropriated and destined for 
the Government use; (2) that contracts for the purchase of pro- 
jectiles are not excepted from the operation of the eight-hour restric- 
tion under the term " supplies " or " materials or articles as may 
usually be bought in open market," which latter are in terms ex- 



138 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

cepted from the operation of section 1 of said act, but only the work 
done in assembling the parts, treating the forgings and castings, and 
machining the projectiles would be work contemplated by the con- 
tract unless the castings or other parts are manufactured solely and 
exclusively for the purpose of making the projectiles; (3) that as 
military smokeless powder is ordinarily manufactured by the Gov- 
ernment for its own use it falls wdthici the proviso in the law that all 
classes of work which have been, are now, or may hereafter be per- 
formed by the Government shall, when performed for the Govern- 
ment under contract, be performed under the restrictions of section 1 
of said act; and that all contracts for the purchase of such powder 
are therefore subject to the eight-hour restriction. 
(29 Op. Atty. Gen., 534.) 



OFFICERS OF THE ARMY: Status of officer accepting a recess appoint- 
ment by way of promotion and retired on such appointment. 

An officer of the Army was given a recess appointment, by Avay of 
promotion, to a vacancy in the next higher grade. The Senate con- 
vened in regular session after the date of said appointment, but 
failed to act upon the nomination of said officer to the position held 
by him under such recess appointment. The officer is about to reach 
the age of retirement. 

Ueld^ that taking into consideration the 99th Article of War, 
which provides that " In time of peace no officer shall be dismissed, 
except in pursuance of the sentence of a court-martial, or in miti- 
gation thereof," and also the laws in force regarding promotion by 
seniority, an officer who accepts a recess appointment by way of pro- 
motion does so conditionally, and should the Senate fail or refuse 
to act upon his nomination to the position, he reverts to his former 
grade in the Army. Held further^ that if an officer, while holding 
such recess appointment, reaches the age of retirement, he is to be 
retired upon the rank of the office which he holds by such recess 
appointment, notwithstanding the Senate may fail or refuse to con- 
firm his nomination to such office. 

(Atty. Gen., Dec. 22, 1912.) 



BULLETIN 4. 

Bulletin! WAR DEPARTMENT, 

No. 4. J Washington, February 1, 1913. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of January, 1913, and digests of certain 
decisions of the Comptroller of the Treasury are published for the 
information of the service in general. 
[2005454, A. G. O.] 
By order of the Secretary or War : 

LEONARD WOOD, 
Major General, Chief of Staff. 
Official : 

H. O. S. HEISTAND, 

Adjutant General. 



OPIinONS OF THE JUDGE ADVOCATE GENERAL. 

BONDS: Of guaranty; release of sureties by modification of contract. 

A contract provided for the manufacture and delivery of a certain 
quantity of single-conductor intermediate cable. The specifications 
and advertisement under which the contract was let formed a 
part of the contract, and prohibited the use, inter alia, of ozokerite 
in the manufacture of the cable. After the greater portion of the 
cable had been delivered, permission was requested to use ozokerite 
in the compound to be put into the cable. Two bonds were given, one 
covering a guaranty of the cable for three years " against all defects 
of material and workmanship," and the other guaranteeing the faith- 
ful fulfillment of the contract. Held, that to grant the permission 
requested would amount to a substantial modification of the contract 
and would release the sureties on both bonds. Advised, therefore, if 
it be desired to grant the permission requested, that a supplemental 
contract be made modifying the original conlract so as to grant such 
permission, and that the assent to such modification be obtained from 
the sureties on both bonds. 

{12-331, J. A. G., Jan. 16, 1913.) 



BUREAU OF INSULAR AFFAIRS : Appointment of officer as chief. 

Section 5 of the act of August 24, 1912 (37 Stat., 594), provides in 
general that, except where otherwise specially provided, when an 
officer shall, under the provisions of section 26 of the act of February 
2, 1901, " be appointed to an office above that of colonel his appointment 

139 



140 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENEEAL. 

to said office and his acceptance of the appointment shall create a 
vacancy in the arm, staff corps, or staff department from which he 
shall be appointed,*' with further provision for his retention of rela- 
tive rank in the branch of the service from which he is appointed and 
his return thereto upon expiration of his appointment. Section 26 of 
the act of February 2, 1901 (31 Stat, 755), provides— 

" That when vacancies shall occur in the position of chief of any 
staff corps or department the President may appoint to such vacan- 
cies, by and with the advice and consent of the Senate, officers of the 
Army at large not below the rank of lieutenant colonel and who shall 
hold office for terms of four years.'' 

At the time of the passage of this act the Bureau of Insular Affairs 
existed only as an administrative division in the War Department. 
The act of July 1, 1902 (32 Stat., 712), continued its existence under 
the designation of Bureau of Insular Affairs of the War Department, 
and the act of June 25, 1906 (34 Stat., 456), provided that: 

" The Chief of the Bureau of Insular Affairs of the War Depart- 
ment shall hereafter be appointed by the President for the period 
of four years, unless sooner relieved, with the advice and consent of 
the Senate, and while holding that office he shall have the rank, pay, 
and allowances of a brigadier general." 

Held, that while the language of the law providing for the appoint- 
ment by the President of the Chief of the Bureau of Insular Affairs 
with the rank, pay, and allowances of a brigadier general is similar 
to the terms of section 26 of the act of February 2, 1901, providing 
for the filling of vacancies in the position of chief of staff corps or 
departments, the former makes no reference to said section 26, but 
provides a special means for filling the position of the Chief of the 
Bureau of Insular Affairs and preserves the feature of the initial 
legislation with reference to said bureau w^hich did not limit the field 
of selection of the chief thereof to officers of certain grades. Section 
5 of the act of August 12. 1912, does not, therefore, apply to the posi- 
tion of Chief of the Bureau of Insular Affairs. 

(6-229.1, J. A. G., Jan. 30, 1913.) 



CLERKS AND EMPLOYEES: Civil Service; furnishing notice of cause of 
removal. 

Section 6 of the Post Office appropriation act of August 24, 1912 
(37 Stat., 555), provides that no person shall be removed from the 
classified civil service except for such cause as will promote the effi- 
ciency of said service and for reasons given in Avriting, and that the 
person whose removal is sought shall have : 

" Notice of the same and of any charges preferred against him, and 
be furnished with a copy thereof, and also be allowed a reasonable 
time for personally answering the same in writing." 

A marine engineer in the classified service, who had been appointed 
to a position on a boat, was discharged from the service by reason of 
the fact that the boat was not to be continued longer in commission, 
although it was stated that reasons existed for preferring charges 
against him. Ileld^ that the statute requiring notice in writing of 
the reasons for the removal of an employee in the classified service 
does not apply to cases of removal occasioned by the fact that the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 141 

services of the employee are no longer required, but only to cases 
where it is proposed to remove such employee for delinquency or 
misconduct, and that the law has no application to this case. 
(16-320, J. A. G., Jan. 10, 1912.) 



CONTRACTS: Supplemental; modification of original contract and adjust- 
ment of damages. 

A contract was entered into after due advertisement for the sinking 
of two wells and for the furnishing of windmills, engines, and pumps 
therefor. After the w ork had been begun, it was found that the loca- 
tion selected by the military authorities was unsuitable and the work 
was ordered suspended. After some delay a new site was chosen, but 
it was found that the amount allotted for the work would not be suffi- 
cient to pay for the removal of the contractor's outfit and the boring 
of two new wells, including payment for the work done at the old 
location and a just compensation to the contractor for the delay. 
Held^ that the heads of departments have authority to enter into sup- 
plemental agreements modifying existing contracts where such agree- 
ments are in the interest of the United States, and that it is permis- 
sible in the present case to enter into a supplemental contract with 
the original contractor for sinking one well and for furnishing it 
with certain appliances, and also for furnishing certain material for 
another well. Held further^ that the former bidders for the work 
have no right or interest therein after the awarding of the contract, 
nor have they any interest in the modifications of such contract. 

(76-420, J. A. G., Jan. 16, 1913.) 



DAMAGES: Liability of a municipality for, caused by failure to keep bridge 
in repair. 

Certain property of the United States was damaged by the giving 
away of a defective bridge within the corporate limits of a town 
which was charged with the duty of keeping said bridge in repair. 
The law of the State makes a town liable for damages resulting from 
the insufficiency or want of repair of a bridge within its corporate 
limits and which it is bound to maintain, but provides further that 
the person damaged shall within twenty days after the damage 
occurs serve upon one or more selectmen of the town a written notice 
pointing out, among other things, in what respect the bridge was 
insufficient or out of repair and stating that the person damaged 
will claim satisfaction from the town. The notice in this case con- 
sisted in sending to a selectman of the town a copy of the report of 
the Army officer detailing the time, place, and circumstances of the 
accident which occasioned the damage, but it did not appear that it 
was stated that the United States would claim satisfaction for the 
injury, nor was it pointed out in what respect the bridge was in- 
sufficient or out of repair, although one of the selectmen was present 
at the scene of the accident and the cause thereof was patent to him. 

Held^ that the liability of the town for the damages resulting 
from the failure to keep the bridge in proper repair is statutory, and 
all the requirements of the law with respect to notice must be com- 



142 DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

plied with in order to fix the liability ; and that as the notice in this 
case failed to specify that the United States would claim satisfaction 
from the town and failed to point out in what respect the bridge 
was insufficient or out of repair, it is fatally defective and the town 
cannot be held liable for the damages, and it is immaterial that one 
of the selectmen may have had actual notice of the defective condi- 
tion of the bridge. 

(80-011, J. A. G., Jan. 25, 1913.) 



DESERTION: Removing charge of, under the act of March 2, 1889. 

Section 1 of the act of March 2, 1889 (25 Stat., 869), provides for 
the removal by the Secretary of War of a charge of dasertion stand- 
ing on the roils or records of The Adjutant General's Office against 
any volunteer soldier of the Civil War where it appears to the satis- 
faction of the Secretary of War from such rolls and records or from 
other testimony — 

" That such soldier served faithfully until the expiration of his 
term of enlistment, or until the first day of May, anno Domini eight- 
een hundred and sixty-five, having previously served six months or 
more, and, by reason of absence from his command at the time the 
same was mustered out, failed to be mustered out and to receive an 
honorable discharge." 

Section T of the same act provides that the same shall not be so 
construed as to relieve any soldier from the charge of desertion who 
left his command under certain special conditions therein stated. 

A soldier enlisted for three years September 16, 1863, and served 
faithfully until October 15, 1865, on which date he was charged with 
having deserted. He i^etumed November 7, 1865, and was again 
charged with desertion April 1, 1866. His company was mustered 
out May 14, 1866. Held, that the question of the removal of the 
charge of desertion can not be affected simply because the soldier 
was charged with desertion twice subsequent to May 1, 1865, the pur- 
pose of the statute being to clear the military records of soldiers 
whose service measured up to its requirements, and the charge con- 
templated being not a mere entry on the record, but rather a status 
of questionable honor resulting from the imputation carried by the 
record ; and further Held, that the charge of having deserted Octo- 
ber 15, 1865, can not be held to render the faithful service prior to 
May 1, 1865, as other than faithful, so as to work a denial of the 
benefit of the statute ; and that if it appears to the satisfaction of the 
Secretary of War that the applicant otherwise meets the require- 
ments of the statute, the charge of desertion should be fully removed. 

(26-541, J. A. G., Jan. 24, 1913.) 



DETACHED SERVICE: Duty in command of machine-gun platoon consist- 
ing in part of detached portion of the company to which the platoon 
commander belongs. 

A first lieutenant of infantry requested credit as for duty with his 
company within the meaning of the detached-service provision of 
the act of August 24, 1912 (37 Stat., 571) , for the period during which 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 143 

he was in coiiiinand of the macliine-gun platoon of the regiment, the 
platoon being composed in part of a detachment consisting of one 
corporal and six privates of the company to which the officer belonged 
by formal assignment. He claimed that while on duty in command 
of the platoon he was at all times on duty with a detachment from 
the company to which he was assigned, and in addition was always 
considered as available for duty with the company and attended 
formations with the company, such as parades, reviews, etc., when 
the machine-gun platoon as such was not present at those formations. 

The enlisted personnel of the machine-gun platoon of a regiment 
is made up of enlisted men detached from several companies of the 
regiment, and although the platoon is not a statutory organization, 
it is in fact a separate organization having no necessary relation 
with any of the companies of the regiment, except in so far as the 
members of the platoon may be carried on the rolls of the statutory 
organizations from which such members have been detached for the 
purpose of assigning them to duty with the platoon (G. O. No. 113, 
War Dept., 1906; G. O. No. 47, War Dept., 1910). The platoon is 
an adjunct or provisional unit of the regiment, or of one of the 
battalions thereof, but not of any company. The captain of the 
company from which the platoon commander is detailed has no more 
to do with the command of the platoon than has any other captain 
of the regiment. 

Applying the principle laid down in a former opinion (6-124, Nov. 
18, 1912) to determine when an officer commanding a detached por- 
tion of his company is to be considered as actually present for duty 
with his company, Held^ that a lieutenant in command of a machine- 
gun platoon is, as such commander, to all intents and purposes de- 
tached from the company to which he may have been formally 
assigned; and the mere fact that a portion of the personnel of the 
platoon is drawn from the company to which the platoon commander 
stands formally assigned can not serve to make his performance 
of duty with the platoon duty with his company in the sense of the 
detached-service provision of the act of August 24, 1912. 

(6-124, J. A. G., Jan. 15, 1913.) 



DETACHED SERVICE: Duty with company; attending- as a witness in 
obedience to a subpoena. 

A captain of infantry whose detachment from his company was 
forbidden by the act of August 24, 1912 (37 Stat., 571), relating to 
detached service, was subpoenaed to attend as a witness at a trial 
before a civil court. His company and battalion were under orders 
to leave for another station and the obedience of the subpoena would 
necessitate a separation from his company. Held^ that while the 
officer is absent from his company in obedience to a subpoena, he is 
not actually present for duty " with his organization," but he is not 
to be considered as detached from his organization " for duty of any 
kind " in such sense as to bring into operation the penalty clause of 
the statute, nor should he be considered as so detached if permitted, 
after service of the subpoena, to delay his departure until after the 
date set for the trial at which he is to testify. 

(6-124, J. A. G., Jan. 10, 1913.) 



144 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

DETACHED SERVICE: An officer commanding- a detached portion of his 
company. 

In an opinion of September 16, 1912, it was said that — 

"An officer who commands a detached portion of his troop, battery, 
or company * * * must, under these conditions, be held, I think, 
to be actually present for duty with his organization." 

In commenting upon the unmistakable meaning of the above ex- 
pression (now embodied in substance in par. 8. G. O. 44, W. D., Nov. 
6, 1912), it was Ac?6?; 

" Its primary purpose was to cover the case of an officer who, 
while standing in the regular and normal duty relation to his com- 
pany, nevertheless is detached for the purpose of the further per- 
formance of duties incident to that relation with a portion of the 
company, and retains his normal duty status to that portion and to 
the company after detachment. Such an officer continues to do duty 
with his company, for the act of detachment creates no new organiza- 
tion, but makes within and under the company organization a differ- 
ent disposition of the company for the better performance of its 
duties. Therefore the detached portion is and remains an integral 
portion of the company, and the company officer on duty with it, 
being on duty w^ith an integral portion of his company, is on duty 
Avith his company. The status remains unbroken ; it is not affected 
b}'^ the act of detachment, it suffers no change during the period of 
detachment, nor will it be affected by the act of rejoining. Because 
of the continuity of the status the officers and men follow the for- 
tunes of the' detachment throughout the period of detachment, and 
upon rejoining proceed to perform their normal duties without the 
necessity of further authority to that end, and, indeed, they must 
do so unless competent authority intervenes and directs otherwise." 

(6-124, J. A. G., Nov. 18, 1912.) 



DETACHED SERVICE: Ordnance Department; detachment or detail of an 
officer to take an examination with a view to detail to said department. 

The question was submitted as to whether a second lieutenant in 
the Coast Artillery Corps might be ordered to take the examination 
for detail to the Ordnance Department notwithstanding he had 
served less than two years with his corps, in view of the provisions 
of the Army appropriation act of August 24, 1912 (37 Stat., 571). 
Said act provides that on and after December 15, 1912, no officer of 
rank below that of major shall be detached from his troop, battery, 
or company " for duty of any kind " unless he shall have been actually 
present for duty with his troop, battery, or company for at least two 
out of the last preceding six years, but adds : " Nor shall anything in 
this proviso be held to apply to the detachment or detail of officers 
for duty * * * jj^ ^j-^g Ordnance Department." Held, that an 
officer who had not had the requisite sei-vice with his company to en- 
title him to detachment or detail for other duty generally, might 
nevertheless be directed to take the examination for fitness for detail 
to the Ordnance Department. 

(6-124, J. A. G., Jan. 7, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 145 

EXTRA DUTY: Construction of statutes; detailing men on extra duty in 
the Quartermaster Corps. 

An opinion was requested as to whether it would be legal to con- 
tinue the temporary employment of enlisted men on extra duty in 
the Quartermaster Cor^DS after the provisions of section 4 of the 
Army appropriation act of August 24, 1912 (37 Stat., 593), relating 
to the enlistment of men in the Quartermaster Corps to take the 
place of enlisted men detailed therein on extra duty, shall have been 
carried into full effect. 

Section 1287 of the Eevised Statutes, as amended by the act of 
July 5, 1884 (23 Stat., 110), authorized the employment of enlisted 
men on extra duty. Section 4 of the act of August 24, 1912, snpra-^ 
authorized the enlistment in the Quartermaster Corps of a certain 
number of men to permanently replace, among others, all enlisted 
men of the line of the Army detailed on extra duty in said corps. 
Held, that said act of August 24, 1912, did not expressly or by impli- 
cation repeal section 1287, Revised Statutes, and amendments, au- 
thorizing the employment of enlisted men on extra duty, and that, 
after the enlisted men of the line of the Army employed on extra 
duty in the Quartermaster Corps have been substituted by the 
full number authorized to be enlisted for this purpose by section 4 
of the act of August 24, 1912, additional men may be detailed on 
extra duty in said corps pursuant to said section 1287 should siv?h 
detail, in the judgment of the administrative officers, be deemed 
necessary. 

(6-224.1, J. A. G., Jan. 17, 1913.) 



LINE OF DUTY: Effects of operation to remove a physical defect existing 
before entering the service. 

A surgical operation was performed upon an officer to remove a 
physical defect existing before he entered the service, as a measure 
of caution by creating a physical Gondition favorable to the officer's 
health. The operation caused an illness which had been entered 
upon the records as not in line of duty. The defect was not the 
result of the officer's misconduct nor was it such as to unfit him for 
duty. Held, that the operation may be regarded as the proximate 
cause of the illness and not the defect itself which existed prior to 
his entering the service. The illness should therefore be entered 
upon the records as in line of duty. 

(54-011, J. A. G., Jan. 11, 1913.) 



MEDICAL TREATMENT: Officer injured while on leave. 

An officer while on leave voluntarily engaged in the work of in- 
specting horses to be purchased by officers of the Army not required 
to be mounted, and while so engaged was severely injured by being 
kicked by one of the horses he was inspecting. The services of a 
civilian physician were procured and on his advice a special train 
was hired to take the officer to his station, where he was received 
into hospital. He was sick from the effects of the injury for a 

9366S°— 17 10 



146 DIGEST or OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

period in hospital and afterwards in (juarters. which sickness was 
characterized as in line of duty. Held, that officers on leave can not 
claim the benefit of medical attendance at the expense of the Gov- 
ernment when away from their proper stations, and neither the bill 
for the services of the civilian physician nor that for extra train 
ser^■ice can be paid from public funds. HeJd fuTt}iei\ that the fact 
that the officer's sickness wdiile in hospital and in quarters was char- 
acterized as in line of duty does not affect the situation, as after his 
return to his station he was no lono;er in a leave status. 
(72-300, J. A. G., Jan. 28, 1913.) 



NATIONAL CEMETESIES: Superintendents; evidence of disability of ap- 
plicant for position of. 

Section 4874, Revised Statutes, provides: 

" The superintendents of the national cemeteries shall ])e selected 
from meritorious and trustworthy soldiers * * * who have been 
honorably mustered out or discharged * * * and who may have 
been disabled for active field service in the line of duty.'' 

A soldier of the Civil War was enlisted and had been a prisoner. 
He was paroled, and afterwards discharged b}^ order of a civil 
court, a corporal, on account of his being a minor, and enlisting 
without the consent of his parents. Hetd^ that there is nothing 
in this record to show^ that the soldier Avas " disabled for active 
field service in the line of duty," but the reason giA'en for his dis- 
charge would indicate that he was not so disabled, and the soldier 
is not eligible for appointment as superintendent of a national 
cemetery. 

(80-413, J. A. G., Jan. 3. 1913.) 

The applicant for the position of superintendent of a national 
cemetery, an ex-soldier, had theretofore filed a claim for pension 
based upon disability incurred in the military service. His claim 
was rejected upon the ground of insufficient evidence. Congress 
subsequently granted him a pension by private act. The report 
of the congressional committee in his case shows that while there 
existed some evidence of disability incurred in the service, it was 
not sufficiently conclusive to establish his claim under the law, 
but that the soldier should, in view^ of all the facts in the case, be 
given the benefit of the doubt. Ileld^ that the action of Congress 
in granting the pension may be accepted as a sufficient basis for 
regarding the disability as incurred in the service so as to bring the 
applicant within the provisions of section 4874, Revised Statutes, 
and that he can legally be appointed to the position of superin- 
tendent of a national cemeterv. 

(80-413, J. A. G., Jan. I7,'l913.) 



OFFICERS: Promotion; suspension from, for one year for failure to pass 
examination other than physical. 

Section 5 of the act of October 1, 1890 (26 Stat., 502), reads in part 
" Tliat the President be, and he is hereby, authorized to pre- 
scribe a system of examination of all officers of the Army below the 



DIGEST OF OPINIOIs'S OF THE JUDGE ADVOCATE GENEFiAL. 147 

rank of major to determine their fitness for promotion. * "' * 
And jyr&vided^ That if any officer faifs to pass a satisfactory examina- 
tion and is reported unfit for promotion, tlie officer next below liim 
in rank, having passed sucli examination, sliall receive tlie pro- 
motion." 

After providing for the retirement of an officer found incapaci- 
tated for service by reason of physical disability contracted in line 
of duty, the statute adds: 

" But if he should fail for any other reason, he shall be suspended 
from promotion for one 3'ear, when he shall be reexamined, and in 
case of failure on such reexamination he shall be honorably dis- 
charged, with one year's pay, from the Army." 

Upon examination for promotion, a captain of Field Artillery was 
found and reported deficient in his practical knowledge of the 
drill regulations of his arm of the service. His promotion to the 
next higher grade was therefore not recommended by the examining 
board. The proceedings and finding of the board were duly ap- 
j)roved and the officer notified accordingly, and he was also notified 
that he had been suspended from promotion for one year under the 
provisions of the act of October 1, 1890, He subsequently submitted 
statements to the effect that he had been detached from duty with his 
branch of the service during the greater portion of the four years 
immediately preceding his examination, and had been engaged upon 
duty which did not give him an opportunity to become practically 
proficient or to remain practically proficient in the handling of a bat- 
tery or battalion of Field Artillery. He accordingly requested that 
his examination be " resumed " after a suitable period of service with 
his regiment for further determination of his fitness for promotion. 

Held., that as the officer has been duly examined according to law 
and regulations and found and declared to be disqualified for pro- 
motion; as the law by necessary implication forbids a reexamination 
or a second examination until after suspension from promotion for 
one year; as the duly qualified officer next below the one found defi- 
cient has become entitled to promotion in advance of the latter; and 
as the statute applicable to the case has in fact been put in operation, 
an order purporting to "extend," or to authorize the "resumption" 
of, the examination of the officer found deficient, " with a view to 
determining more satisfactorily certain questions concerning his 
qualifications," Avould amount to a revocation of the final approval 
theretofore given in respect of his examination, would result in grant- 
ing him a reexamination or a second examination without subjecting 
him to the suspension from promotion which the law requires, and 
might deprive another officer of an accrued legal right; and that, 
therefore, such order may not legally be issued. C. 13214, Sept. 2, 
1902: C. 22818, April 21, 1908: C. 28645, Julv 5, 1911. 

(64-221.3, J. A, G., Jan. 28, 1913.) 



OFFICERS: Resignation of, to take effect at a future date and withdrawal 
after acceptance. 

An officer of the Army tendered his resignation to take effect at 
a future date, which resignation was duly accepted by the President. 
Thereafter and before the time for his resignation to take effect he 
desired to withdraw the same. Held, that as the resignation ten- 



148 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

tiered had not in fact become effective, as the individual who had 
tendered the same was still an officer of the Army, and as no rights 
of another had intervened, the acceptance of the tender may be re- 
called and the officer permitted to withdraw the same. 14 Op. Atty. 
Gen., 261 ; Throop on Public Officers, 406. 
(61-334, J. A. G., Jan. 25, 1913.) 



PAY CLERKS: Of the Army; assignment of quarters to, at a post where 
there are troops. 

By the act of March 3, 1911 (36 Stat., 1044), it was provided that 
the pay and allowances of Army paymasters' clerks (now^ pay 
clerks) " shall be the same as provided by law for Navy paymasters' 
clerks on shore duty." Paymasters' clerks in the Navy are by law 
entitled to receive the same pay and allowances " as warrant officers 
of like length of service in the Navy." The act of March 3, 1901 
(31 Stat., 1107), provides that warrant officers of the Navy shall re- 
ceive " the same commutation for quarters as second lieutenants of 
the Marine Corps"; and by section 1612, Revised Statutes, officers 
of the Marine Corps receive the same pay and allowances as officers 
of like grade in the Infantry of the Army. 

On application of a pay clerk serving at a post where there were 
troops for assignments of quarters, Ileld^ that he is entitled when on 
duty at a post with troops to the same number of rooms as quarters 
as a second lieutenant of the Army, and to such quarters as may 
be assigned to commissioned officers, but that he has no right of 
selection under paragraph 1042, Army Regulations of 1910, of quar- 
ters occupied by anv commissioned officer. 

(6-134, J. A. G., Jan. 17, 1913.) 



PAY OF SOLDIERS: Deduction of pay for absence from duty by reason of 
intemperate use of drugs or alcoholic liquors, or other misconduct. 

The Army appropriation act of August 24, 1912 (37 Stat., 572), 
provides : 

" No officer or enlisted man in active service Avho shall be absent 
from duty on account of disease resulting from his own intemperate 
use of drugs or alcoholic liquors, or other misconduct, shall receive 
pay for the period of such absence from any part of the appropria- 
tion in this act for the pay of officers or enlisted men." 

Cases were presented of several soldiers who, through their own 
misconduct prior to their present enlistment and prior to the passage 
of the act, had become infected with venereal disease, which necessi- 
tated their treatment in hospital and consequent absence from duty. 
Ilcld^ that the act in question, having for its object the regulation of 
the future conduct of the soldier and not merely the saving which 
might result to the United States by the deduction of pay for absences 
occasioned by their misconduct, is prospective in its operation and 
penalizes only misconduct and its consequent absence occurring after 
the passage of the act and after the beginning of a soldier's current 
enlistment; it is not to be construed as penalizing past offenses. No 
deductions should therefore be made from the pay of soldiers absent 
from duty resulting from misconduct which occurred before the pas- 
sage of the act or before their current enlistments began. Held^ fur- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 149 

thcT^ that Avhere a soldier suffering from a disease acquired through 
his misconduct is properly ordered to hospital for treatment, notwith- 
standing he may be able to perform duty at the time, the absence from 
duty occasioned thereby must be regarded as caused by his own mis- 
conduct, and if the case falls within the operation of the law a deduc- 
tion of pay should be made accordingly. 

(72-214, J. A. G., Jan. 23, 1913.) 

Note. — The above views were concurred in by the Comptroller of 
the Treasury in a decision of January 30, 1913, to the Secretary of 
War. 



QUABTERS: Change of station; commutation. 

An officer was ordered to proceed from a post where he had been 
stationed to a city to take charge of a recru.iting office at that place 
" until further orders." After three months he was relieved by an- 
other officer under orders which recited that the first officer, upon be- 
ing thus relieved, *' wdll return to his proper station." The first- 
mentioned officer, before entering upon duty at the recruiting station, 
asked permission for his family to occupy his quarters at his old 
station until he could determine the length of his detail or make other 
arrangements, such occupancy not to dep^i^•e any other officer of the 
use of said quarters, which request was approved by the commanding 
officer. Helcl^ that the officer's orders effected a change of station 
from the place where he had been on duty to the recruiting station, 
and that he was entitled to commutation of quarters at the latter 
station upon making the usual showing required in order to obtain 
this allowance. 

(72-333, J. A. G., Jan. 20, 1913.) 



BESPONSIBILITY: Erroneous entry of peri'od of enlistment on a soldier's 
descriptive card. 

The recruiting officer at a post entered upon a descriptive and 
assignment card of a recruit that he was serving in his second enlist- 
ment period, when^ as a matter of fact, the papers disclosed that he 
was serving only in his first enlistment. The adjutant general of the 
post with the same data before him certified to the correctness of this 
entry. The soldier was transferred to a company on such descriptive 
and assignment card, and overpaid in consequence of the erroneous 
entry. Eeld^ that the responsibility for the overpayment rests upon 
both the recruiting officer and the adjutant of the post, and that they 
should contribute equally to making good the overpayment. 

(72-515.1, J. A. G., Jan. 6, 1913.) 



RETIREMENT: Service required; counting- double time for service in the 
Philippine Scovits. 

The act of February 14, 1885 (23 Stat., 305), authorizes the retire- 
ment of enlisted men after thirty years' service, and the acts of March 
2, 1903 (32 Stat., 934). and of June 12, 1906 (34 Stat., 248), provide 
that where enlisted men have served " as commissioned officers of 



150 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Philippine Scouts," and after muster out or discharge, shall return to 
the ranks of the Kegular Army, they shall be entitled to count the 
service in computing the time necessary to enable them to retiie as 
enlisted men. The act of April 23, 1904 (33 Stat., 204), provides for 
double credit for service in the Philippine Islands in computing 
length of service for retirement. The Army appropriation act of 
August 24, 1912 (37 Stat., 575), prohibits credit for double time for 
foreign service in computing length of service for retirement " to 
those who hereafter enlist.'" 

Ileld^ that in view of section G of the act of February 2, 1901 (31 
Stat., 757), which authorizes the appointment of enlisted men of the 
Eegular Army as commissioned officers of the Philippine Scouts for 
periods of four years each, commissions in the Philippine Scouts may 
be construed as analogous to enlistment ])eriods, and that where the 
commission w^as issued prior to August 24, 1912, service therein 
during the four-year period should be counted as double time for pur- 
poses of retirement. Held^ furtlier, that service under each commis- 
sion for a further term of four years after August 24, 1912, or under 
a reenlistment in the Army after said date, comes within the oper- 
ation of the act, and that such service can not be counted double for 
retirement purposes. 

(88-823, J. A. G., Jan. 7, 1913.) 



TRANSPORTATION: Of horses of officers on change of station; shipment 
in excess of the authorized number from point of purchase to last 
station. 

The act of March 23, 1910 (36 Stat., 255), provides that— 

" Hereafter transportation may be furnished for the owned horses 
of an officer, not exceeding the number authorized by law, from point 
of purchase to his station, when he would have been entitled to and 
did not have his authorized number of owned horses shipped upon his 
last change of station, and when the cost of shipment does not exceed 
that from his old to his new station." 

HeJd, that it w^ould be feasible to provide by regulation that an 
officer might have his authorized number of horses transported at 
(Tovernment expense from place of purchase to his last station under 
the conditions stated under said act, even though the cost of such 
transportation be greater than the cost from his old to his new sta- 
tion, upon depositing with the shipping officer an amount suffi- 
cient to cover such excess of cost. 

(94-231.1, J. A. G., Dec. 20, 1912.) 

Upon consideration of the question as to whether an officer might 
procure the shipment of horses owned by him in excess of the num- 
ber wdiich he is entitled to have maintained at public expense from 
point of purchase to last station, by first paying to the shipping 
officer the cost of such shipment. Held, that the shipment of such 
horses on a Government bill of lading with the horses he is entitled 
to keep and use in the Government service is not authorized, even 
though the officer should advance an amount sufficient to pay for 
such shipment. 18 Comp. Dec, 494. 

(94-231.1, J. A. G., Jan. 16, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 151 

TRAVEL ALLOWANCES: Of discharged soldiers; furnisMng subsistence 
during travel over a longer route. 

The Chief of the Quartermaster Corps submitted the question of 
whether, under the provisions of the act of August 24, 1912 (37 Stat., 
576), in furnishing transportation in kind and subsistence to soldiers 
on discharge, such transportation may be furnished " via any routs 
between comj^etitive ])oints where the cost of transportation and 
sleeping-car accommodations does not exceed the cost via the route 
o^er which the official distance is figured as published in the official 
distance table of the War Department," provided that no addi- 
tional cost of subsistence is paid on account of the additional travel 
involved in the selection of the longer route. 

Held., that the transportation authorized is between points and 
there is no provision that it shall be over the shortest usually 
traveled route, although travel could not properly be allowed over 
a longer route if the cost, including commutation of subsistence, 
be greater than over the shorter route; but if such cost is greater 
over the longer route, transportation over such route may never- 
theless be furnished if the soldier indicates his preference to travel 
over such route and his willingness to accept commutation of sub- 
sistence not exceeding the amount he would receive should he travel 
over the shorter route. 

(91-332, J. A. G., Jan. 27, 1913.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in tlie office of the Judge Advocate General.) 

FORAGE ALLOWANCE: Officers of the Medical Reserve Corps on leave of 
absence. 

An officer of the Medical Reserve Corps of the Army on active 
duty was granted a leave of absence and ordered to his home to be 
relieved from active duty at the expiration of the said period of 
leave. The question was submitted by the Secretary of War as 
to whether or not he was entitled to be furnished forage by the 
Quartermaster Corps for mounts owned and kept by him at his 
home during the period of his leave of absence. 

The act o'f April 23, 1908 (35 Stat., 68, 69), provides for the issue 
of commissions as first lieutenants to certain graduates of medical 
schools found qualified on examination, which commissions shall 
confer upon the holders " all the authority, rights, and privileges of 
commissioned officers of the like grade in the Medical Corps of the 
United States Army, except promotions, but only when called into 
active duty," as thereinafter provided, " and during the period of 
such active duty." The act further provides that during the period 
of such active service said officers "shall be entitled to the pay and 
allowances of first lieutenants of the Medical Corps." Held, that 
the acts of June 18,, 1878 (20 Stat., 150), and February 21, 1881 
(21 Stat., 347), providing for the furnishing of forage in kind to 
officers of the Army who own and keep their own mounts, contem- 
plate the furnishing of such forage to officers for horses owned and 
kept by them in the performance of their official military duties 
when on duty as in said act specified, and at places where they are 



152 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

on duty, and that an officer on leave of absence is not on duty and 
is not entitled to forage for a horse owned and kept by him while 
in that status. 

(Comp. of the Treas., Jan. 17, 1913.) 



HEAT AND LIGHT ALLOWANCE: Payment of full allowance; reimburse- 
ment for amount used. 

An officer whose authorized allowance for quarters was five rooms, 
occupied as quarters a private residence consisting of ten rooms, 
heated by natural gas and lighted by electricity, having but one 
meter for gas and one for electricity. Through a misunderstanding 
the accounts for heat and light were paid direct by the officer 
entitled to the allowance, and he was reimbursed by the Quarter- 
master to the maximum allowance prescril)ed for an officer of his 
grade in paragraph 1073, Army Eegulations, 1910. The amounts 
were disallowed by the Auditor for the War Department in the 
Quartermaster's accounts, and the officer was called upon to refund 
the amounts paid. On application to the Comptroller of the Treas- 
ury the disallowance made by the auditor was sustained upon the 
authority of a decision of the comptroller dated March 16, 1912, 
holding that where an officer occupies as quarters his own private 
residence containing more rooms than are prescribed by law as the 
authorized allowance for an officer of his rank, the Quartermaster's 
Department is authorized to supply heat and light necessary for 
his (juarters not to exceed the quantity prescribed by regulations 
for the number of rooms to which his rank entitles him, and that an 
officer, under such circumstances, is not entitled to commutation 
of the heat and light allowances. On consideration of the case as a 
request for an advance decision. Held, that upon the presentation 
of proper vouchers the officer in this case can now be reimbursed to 
the extent of the gas and electricity consumed by him not exceed- 
ins' the amount allowed by regulations for his quarters for the 
period in question, and that the officer having used during said 
period 386,000 cubic feet of gas for heating, he may be reimbursed 
for the cost of 159,000 cubic feet, the amount of his allowance, at 
regulation rates, and that having used 317,000 watt hours of electric 
current for the same period for light, as against his allowance of 
516,000 watt hours for the same period, he can be reimbursed for the 
cost of the full amount used at regulation rates. 
(Comp. of the Treas., Jan. 6, 1913.) 



HEAT AND LIGHT ALLOWANCE: To officers on promotion; date upon 
v/hich increased allowance becomes effective; Naval officer. 

Section 13 of the Navy personnel act of March 3, 1899 (30 Stat., 
1007), provides that commissioned officers of the line of the Navy 
and of the Medical and Pay Corps shall receive the same allowances, 
except forage, as are or may be provided by law for officers of corre- 
sponding rank in the Ai-my. The question was submitted as to the 
date from which tlie landlord of a naval officer in receipt of com- 
mutation of (|uarters was entitled to increased comjiensation. by rea- 
son of the officer's promotion, for furnishing such officer with heat 
and light. The officer's ad interim commission was signed by the 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 153 

President November 10, 1912, but the appointment was to fill a 
vacancy by promotion and the officer took rank from August 22, 
1012, After referring to the laws and regulations governing heat 
and light allowances for officers of the Army and to a prior decision 
of the office, it was Held^ that the landlord became entitled to be paid 
for heat and light furnished at the rate allowed for an officer of the 
grade to which the officer was promoted only from November 19, 
1012, the date of his ad interim appointment, and not from the date 
wlien he Avas to take rank. 

(Comp. of the Treas., Jan. 8, 1013.) 



TRAVEL ALLOWANCES: Mileage and expenses; change of station while 
on leave. 

A lieutenant of the Coast Artillery while stationed in the Philip- 
pine Islands was transferred to a post in the United States, the 
change to become effective October 1. 1912. Prior to this date, he 
was given leave of absence with permission to return to the United 
States by way of Europe and thereupon he was to join his new sta- 
tion. While on this leave, his station in the United States was again 
changed, and he was ordered to proceed to the new station thus 
designated. He did not receive this order until after his arrival in 
the United States and near the post to which he had been at first 
ordered. He thereupon proceeded to join his new station. 

The law authorizing the payment of mileage to officers of the 
Army is found in the act of June 12, 1006 (34 Stat., 247), which act, 
after fixing the allowance, provides that — 

" When the station of an officer is changed while he is on leave of 
absence he will on joining the ncAv station be entitled to mileage for 
the distance to the new station from the place where he received the 
order directing the change, provided the distance be no greater than 
from the old to the new station; but if the distance be greater he 
will be entitled to mileage for a distance equal to that from the old 
to the new station only : And provided further^ That for all sea travel 
actual expenses only shall be paid to officers * * *." 

Held^ that the law relating to change of station while an officer is 
on leave applies to those cases where he is under orders to return to 
his old station, and that as at the time of going on leave this officer 
was under orders to change station without troops with destination 
at a post in the United States, such provision does not apply, and 
he is entitled to mileage and actual expenses which the law gives for 
travel, from his station in the Philippine Islands to the last station 
to which he was ordered in the United States; and in determining 
such actual expenses across the Pacific Ocean, the amount generally 
paid by an officer for subsistence on a transport at or about the time 
the officer was relieved from duty in the Philippine Islands may be 
accepted as the amount due for such portion of the journey. The 
order changing his destination after he had gone on leave amounted 
to a modification of his former order, and did not amount to a change 
of station from the post to which he first had been ordered in the 
United States, and where he could not have acquired a station until 
his arrival thereat. 

(Comp. of the Treas., Jan. 9, 1013.) 



BULLETIN 8. 

Bui^LETixl WAR DEPARTMENT, 

No. 8. J A\ AsiiiXGTox, March 18, 1913. 

The following digCvSt of certain opinions of the Judge Advocate 
General of the Army for the month of February, 1913, and of cer- 
tain decisions of the Comptroller of the Treasur}'^ and of the Court 
of Claims, is published for the information of the service in 
general. 

[2019591. A. G. O.] 

By ORDFJt OF THE SECRETARY OF War : 

LEONARD WOOD. 

Major General, Chief of Staff. 
Official : 

GEO. ANDREWS, 

Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ABSENCE: From duty due to misconduct; stoppage of pay. 

The Army appropriation act of August 24, 1912 (37 Stat.. 572), 
provides that a soldier shall not receive pay from the appropriation 
contained in the act while he may be absent from active duty on 
account of disease " resulting from his own intemperate use of drugs, 
or alcoholic liquors, or other misconduct." A soldier was sick in 
hospital for one day and consequently absent from active duty by 
reason of injuries received in a fist fight in which he voluntarily 
engaged. Ileld^ That the words " other misconduct " in the statute 
is limited by the rule of ejusdem ge^ieris to conduct of the same 
general character as that indicated by the words preceding them, 
to wit, "intemperate use of drugs, or alcoholic liquors" (3C) Cyc, 
1119), or misconduct consisting in the intemperate or improper 
indulgence of natural or acquired appetites: that the misconduct 
of the soldier in this case was not of such general character; and 
that no deduction should be made from his pay while absent from 
active duty on account thereof. 

(72-210, J. A. G., Feb. 14, 1913.) 



CONTRACTORS: Damage to heating system while under control of con- 
tractors before being turned over to United States. 

Compensation for damiges was claimed by contractors, who were 

installing a hot water heating system at an Army jxjst. for injuries 

to said plant caused by freezing. At the time the damage occui-rod 

the system Avas being adjusted by the contractors prior to accept- 

154 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 155 

ance by the United States ami ^Yas under their controL Xo instruc- 
tions were given by the contractors relative to the proper operation 
of the system, and it appeared that when the valves of said system 
were closed they entirely stopped the flow of water, it being in this 
respect unlike many other systems, which allow a slight flow at all 
times in order to prevent freezing. 

//e?G?, that the system being under the control of the contractors 
at the time the damage occurred, and the contractors having been 
negligent in not taking proper steps to prevent injury from freez- 
ing, the claim for extra compensation on account of such injury 
should be disallowed. 

(76-732, J. A. G., Feb. 21, 1913.) 



CONTRACTS: Assignment of when original contractor is unable to com- 
plete the work. 

A company having a contract with the United States to supply 
coal during the fiscal year ending June 30, 1913, became finan- 
cially embarrassed and a new^ company was organized by the prin- 
cipal stocldiolders of the old company to continue the business of 
the old company, and the contract assigned to such new company. 
The surety company guaranteeing the old contract executed a sup- 
plemental instrument whereby it agreed that its bond should cover 
the faithful performance of the contract by the assignee. 

Held, that while the better form would have been a tripartite 
contract supported by a new bond whereby the assignee would 
contract directly with the United States for the completion of the 
contract and the assignor w-oulcl agree directly with the United 
States that all payments should be made to the assignee, the facts 
here stated are not such as to bring the case within the prohibition 
of section 3737, Revised Statutes, forbidding the transfer of con- 
tracts with the United States, and the Chief of the Quartermaster 
Corps mav therefore approve the assignment. 

(76-520, J. A. G., Feb. 20, 1913.) 



CONTRACTS: Parties to; including persons other than the bidder. 

A contract was awarded to a party for the construction of a power 
plant under the War Department upon a bid submitted under 
instructions which required the bidder to enter into a contract and 
to give bond with satisfactory surety for its faithful performance, 
including also a stipulation for the protection of laborers and mate- 
rial men. The contractor signed the contract but, owing to his 
financial condition, was unable to furnish the required bond for the 
due performance of the contract, because of Avhich the same was not 
signed on behalf of the United States. In order to secure such 
surety it was requested that a representative of a surety company be 
permitted to join as a partner in the contract, so as to give the surety 
company such joint control of the receipts and disbursements arising 
out of the contract as would make it reasonably safe for the company 
to become surety for the due performance of the work and for the 
payment of laborers and material men. 



156 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Held., that there is no legal objection to permitting the representa- 
tive of the surety company to be joined as a copartner or as a joint 
contractor, as may be desired; and that the position of the repre- 
sentative of the surety company should not be regarded as dis- 
qualifying that company from becoming surety on the bond, there 
being no law or regulation prohibiting it. 

(76-331.2, J. A. G., Feb. 24, 1913.) . 



CONTRACTS: Purchase in open market after advertising without result. 

Bids "were opened at various points after due advertisement, for 
the purchase of marching shoes manufactured in accordance with 
Government specifications. Only one bid was received, that being 
submitted by a manufacturer at Boston, Mass., and a contract was 
awarded to such bidder for the shoes covered by the advertisement. 
Telegrams were sent to the depot headquarters at said points to 
ascertain and report why shoe manufacturers other than the one 
named had failed to bid under the advertisement. The replies 
received showed that the manufacturers gave various reasons for 
such failure, the principal ones being that the specifications and 
inspection of the Government were too rigid, and that the march- 
ing shoes of the new pattern were of a type not in general use by 
the public so that there would be difficulty in disposing of rejected 
shoes without considerable loss. 

Held., that under these circumstances the law regarding advertis- 
ing for contracts may be regarded as substantially complied with, 
the failure of the bidders to submit bids and the result of the in- 
quiries following such failure clearly showing that further advertis- 
ing for shoes at this time Avould be useless; and that therefore a con- 
tract may now be made for the purchase of shoes upon such terms as 
mav be considered reasonable, without further advertising. 

(76-125, Feb. 21, 1913.) 



DETAILS: Eligibility for redetail to Ordnance Department. 

Section 26 of the act of February 2, 1901 (31 Stat., 755), appli- 
cable to all staff corps and departments therein specified, including 
the Ordnance Department, provides that — 

" When any vacancy except that of chief of the department or 
corps shall occur, Avhich can not be filled by promotion as provided 
in this section, it shall be filled by detail from the line of the Army. 
* * * Such detail shall be made from the grade in which the 
vacancies exist, under such S3^stem of examination as the President 
may from time to time prescribe. 

"All officers so detailed shall serve for a period of four years, at 
the expiration of which time they shall return to duty with the 
line, and officers below the rank of lieutenant colonel shall not again 
be eligible for selection in any staff' department until they shall have 
served two years with the line.'' 

Section 1 of the act of June 25, 1906 (34 Stat., 455), constituted 
the official personnel of the Ordnance Department and section 2 of 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 157 

tlie said act made special provision for detail to said department as 
follows : 

" That details to the Ordnance Department under the provisions 
of the act of February second, nineteen hundred and one, may be 
made from the Army at large from the grade in which the vacancy 
exists, or from the grade below: Provided^ That no officer shall be 
so detailed except upon the recommendation of a board of ordnance 
officers, and after at least one examination, Avhich shall be open to 
competition: And provided further^ That officers so detailed in 
grades below that of major shall not be again eligible for such detail 
until after they shall have served for at least one year out of that 
department." 

A captain in the Coast Artillery Corps, while a first lieutenant 
therein, was detailed as captain in the Ordnance Department, was 
promoted to the grade of captain in his corps, and was thereafter 
relieved from his detail in the Ordnance Department. It was de- 
sired to redetail him as major in the Ordnance Department before 
he had served one year out of that department. 

Ileld^ that although section 26 of the act of February 2, 1901, was 
applicable to the Ordnance Department, the act of June 25, 1906, 
prescribed a special rule for that department, and while the former 
prescribes as a general rule for eligibility for redetail an intervening 
service of two years with the line, redetails may be made under the 
latter act to the Ordnance Department after a service of at least 
one year out of that department; held further^ that the requirement 
of one year's service out of the department applies only to details 
below the grade of major, and that the officer relieved from duty 
under his detail as captain is not ineligible for redetail to the depart- 
ment in the grade of major, although he may not have served for 
one year outside of that department since he was relieved from his 
detail as captain therein. 

(6-225 J. A. G., Feb. 12, 1913.) 



DISCHABGE: Character of, after returning from desertion under the 
President's proclamation of March 11, 1865. 

A soldier enlisted July 1, 1860, for five years and deserted July 29, 
1863. While still a deserter and during the war he was mustered 
into the volunteer service, from which he deserted and enlisted in 
another organization of the volunteer service which he abandoned 
in order to surrender himself, under the President's proclamation 
of March 11, 1865, as a deserter from his original service. He was 
discharged from his first service by reason of expiration of term 
March 13, 1867, having made good time lost in desertion. No action 
was taken with respect to his desertion from the volunteer service, 
or with respect to his leaving the same in order to surrender himself 
as a deserter. 

Tleld^ that the pardon extended by the President in his proclama- 
tion to those returning from desertion within a certain time applied 
to all soldiers who were at the time in desertion and, therefore, to 
desertions from enlistments entered into prior to the beginning of 
the Civil War; that such pardon operated to absolve the deserter 



158 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

from the consequences and disabilities attacliin<^ to that offense, but 
not to remove the charge or fact of desertion in either of the other 
two instances in the present case: held further, that this soklier was 
lionorably discharged only from his first enlistment and from no 
other organization in which he served or enlisted during the Civil 
War. 

(26-710, J. A. G., Feb. 7, 1913.) 



EIGHT-HOUR LAW: Application to verbal and other informal contracts. 

The eight-hour law of June 19, 1912 (37 Stat., 137). provides, in 
its first section, that every contract made for or on behalf of the 
United States — 

" Which may require or involve the employment of laborers or 
mechanics shall contain a provision that no laborer or mechanic doing 
any part of the work contemplated by the contract, in the employ of 
the contractor or any subcontractf)r contracting for any part of said 
work contemplated, shall be I'equired or permitted to work more 
than eight hours in any one calendar day upon such work," 

Section 3714, Revised Statutes, requires that — 

" It shall be the duty of the Secretary of War, of the Secretary of 
the Xavy, and of the Secretary of the Interior to cause and require 
every contract made by them severally on behalf of the Government, 
or by their officers under them appointed to make such contracts, 
to be reduced to writing, and signed by the contracting parties with 
their names at the end thereof.''' 

Held., that while verbal contracts and those evidenced by written 
offer and acceptance or other memoranda not amounting to a com- 
pliance with section 3744, Revised Statutes, are not binding upon 
the Government as to any executory portion thereof, yet when per- 
formed they are to be treated in all respects as valid contracts, and 
the adjustment of the rights of the parties thereto must be made ac- 
cording to their terms; that while in cours? of performance they 
should also be treated as valid contracts; and that the provisions of 
the eight-hour law of June 19, 1912, should therefore be applied to 
such contracts during. their performance as thougli they had been 
executed according to the formalities required bv law. 

(32-300, J. A. G., Feb. 26, 1913.) 



EIGHT-HOUR LAW: Employment of laborers and mechanics on separate 
contracts on the same day. 

A manufacturing company liad a contract with the Government 
coming within the operation of the eight-hour law of June 19, 1912 
(37 Stat., 137), section 1 of which requires that every contract made 
for or on behalf of the United States involving the employment of 
laborers or mechanics — 

"Shall contain a provision that no laborer or mechanic doing any 
part of the work contemplated by th.e contract, in the enqiloy of the 
contractor or any subcontractor contracting for any part of said 
work contemplated, sludl be required or pennitted to work more than 
eight hours in any one calendar day." 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 159 

Upon request for an opinion as to whether a contractor, after em- 
ploying laborers and mechanics on a contract coming within the 
eigiit-liour law for eight hours in any calendar da.j, might continue 
such employment for an additional time on the same day on anotlier 
contract not coming within the operation of said law, held, that the 
statute operates only upon the particular contract subject to its pro- 
visions; that the supervision by Government officials required by the 
statute extends only to work contemplated bj^ the contract; and that 
a Government contractor under a contract coming witliin the opera- 
tion of the law, may employ laborers and mechanics thereon for 
eight hours a day and thereafter continue their emploj'ment on the 
same day on another contract with the Government not coming 
within the operation of the law, without incurring the penalties pre- 
scribed by said law. 

(3-2-300, J. A. G., Feb. 5, 1913.) 



MILITIA: Organization of enlisted men of, into a reserve. 

Section 3 of the act of January 21, 1903 (32 Stat, 775), as amended 
bv section 2 of the act of May 27, 1908 (35 Stat., 399), provides 
that— 

"On and after January 21, 1910, the organization, armament, and 
discipline of the Organized Militia in the several States and Terri- 
tories and the District of Columbia shall be the same as that which 
is now or may hereafter be prescribed for the Eegular Army of the 
TTnited States, subject in time of peace to such general exceptions 
as may be authorized by the Secretary of War." 

Section 2 of the Army appropriation act of August 24, 1912 (37 
Stat,, 590), provides for a seven-year enlistment period, and also, 
among other things, provides for an Army reserve. 

Held, that the Army reserve provided for by said act of August 
24, 1912, is not an organization within the meaning of the act of 
January 21, 1903. and that the Secretary of War, under existing law, 
can not require the Organized Militia of the several States to organ- 
ize and maintain reserves similar to that provided for the Eegular 
Armv. 

(6-300, J. A. G., Feb. 17, 191«3.) 



OFFICERS OF THE, ABMY: Appointment and lineal rank. 

Section 1219 of the Revised Statutes provides— 

" In fixing relative rank between officers of the same grade and 
date of appointment and commission, the time which each may 
have actually served as a commissioned officer of the Ignited States, 
whether continuously or at different periods, shall be taken into 
account. And in computing such time, no distinction shall be made 
between service as a commissioned officer in the Regular Army and 
service since the 19th day of April, 1861, in the volunteer forces, 
whether under appointment or commission from the President or 
from the governor of a State." 

Section 3 of the act of June 18, 1878 (20 Stat., 150), provided for 
the filling of vacancies in the grade of second lieutenant bv the 



160 DIGESr OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

appointment of meritorious noncommissioned officers, but was silent 
as to the rule for determining their relative rank, and the rule re- 
mained unchanged until the act of July 30, 189-2, section 3 of which 
provides (27 Stat., 336) — 

" The vacancies in the grade of second lieutenant heretofore filled 
by the promotion of meritorious noncommissioned officers of the 
Army, under the provisions of section 3 of the act approved June 18, 
1878, shall be filled by the appointment of competitors favorably rec- 
ommended under this act, in the order of merit established by the 
final examination." 

An enlisted man was in 1900 appointed a second lieutenant in the 
Army, after a competitive examination in pursuance of said act of 
July 30, 1892. He had previously seen service as a commissioned 
officer of volunteers in the Spanish War, which service was not taken 
into consideration in fixing his relative rank. 

Section 28 of the act of February 2, 1901 (31 Stat., 755), created 
certain vacancies and prescribed a rule for fixing the rank of first 
and second lieutenants appointed under its provisions based on prior 
commissioned service. 

Held., that section 1219, Revised Statutes, is -general in its terms, 
and that the act of July 30, 1892, makes a special exception thereto 
in the case of persons entering the grade of second lieutenant from 
enlistment by providing for the fixing of their relative rank accord- 
ing to merit determined at the time of examination, without regard 
lo prior commissioned service. Held, further, that the vacancies 
created by the act of February 2, 1901, were filled according to the 
special provision made in said act, which has no application to this 
officer's case, and that the officer in this case, having been appointed 
]>rior to said act, does not come within its terms so as to have his 
commissioned service counted, but is protected by its provisions, so 
that no a])pointee thereunder having less commissioned service than 
he can be placed above him as second lieutenant. 

(82-131, J. A. G., Feb. 3, 1913.) 



CFEICIAL RECORDS: Producing confidential, in obedience to subpoena. 

A subpoena Avas issued out of the Supreme Court of the District of 
Columbia and served upon the Chief of the Quartermaster Corps 
requiring his appearance before a notary public to testif}?^ as a witness 
in a case pending between private parties in the Federal court, the 
])urpose evidently being to secure copies of certain reports and rec- 
ommendations relating to the contract referred to in the subpoena, 
which copies had been denied by the Acting Secretary of War. 

Held, that the report of inspection and test of the samples sub- 
mitted by the several competitors for a contract is confidential in its 
nature, and the contents should not be disclosed, as such disclosure 
would be contrary to public policy in that its pul)licity would tend 
to hamper the freedom of inspection and recommendation by inspect- 
ing officers; Held further, that the Chief of the Quartermaster Corps 
can not legally be required to produce or read said report in evidence. 

(14-231, J. A. G., Feb. 8, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 161 

PAY ROLLS: Certification of; muster for pay. 

The certificate upon the form of pay roll approved by the Comp- 
troller of the Treasury April 8, 1912, reads : 

" I certify that I have this day mustered this organization and find 
all present and absent accounted for on this roll, as required by Army 
Regulations." 

Objection was made by an officer to signing this certificate because 
Iho roll did not contain all the entries required by the Twelfth Article 
of War to be inserted on muster rolls, and he therefore believed that 
ill signing such a roll he would be signing a false muster and would 
hubject himself to the penalty prescribed in the Fourteenth Article 
of War. 

The Army Regulations of 1910 provide as follows: 

" Troops will be mustered for pay on the last day of each month 
unless otherwise ordered by the War Department." (Par. 447.) 

" Each stated muster will, when practicable, be preceded by a 
minute and careful inspection." (Par. 448.) 

''At every muster of troops pay rolls Avill be prepared, signed, and 
disposed of in accordance with the directions on the blank forms 
furnished by the Paymaster General of the Army, and at each bi- 
monthly muster on the last day of February, April, June, August, 
October, and December muster rolls will be prepared, signed, and 
disposed of in accordance with the directions on the blank forms 
furnished by The Adjutant General of the Army." (Par. 820.) 

The present form of pay roll omits the names of commissioned 
officers of the organization, and it is directed that " only such remarks 
;is affect the soldiers' pay will be entered" thereon. The Twelfth 
Article of War requires that the time of absence of offi-cers and 
enlisted men, together with the reasons therefor, shall be inserted on 
the muster rolls opposite the names of the respective absentees. 

Beld^ that wdiile the present monthly pay roll has many elements 
in common with the bimonthly muster roll, their legal relation to the 
administration of the Army is not necessarily the same, and that it 
is clear that the Twelfth Arttcle of War has application to the muster 
roll rather than to the pav roll. 

(72-201, J. A. G., Jan. 23, 1913.) 

Note. — In view of the reasons expressed in the above opinion, the Secretary of War 
decided that it was not necessary to amend tlie ceitificate on the pay roll. 



PUBLIC PROPERTY: Title to lands in street improved at Government 
expense. 

The streets in a city leading from a military reservation to the 
railroad depot and over which the bulk of the heavy hauling was 
that between the station and the military post, were in very bad 
condition, so that at times they were almost impassable. The city 
was not able or was not willing to repair the same at its own ex- 
pense, but proposed that the Government should furnish one-third 
the amount necessary for the improvement and the city should 
furnish the other tAvo-thirds. The commanding officer of the post 
was of the opinion that the proportion of cost asked from the United 
States was fair, considering the amount of hauling which the Gov- 

936(38° -17 11 



162 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 

ernment does OAcr the streets in question. The ffovernment owned 
neither the fee nor i-ight of wa^' in the streets. 

Ileld^ that as the bulk of the lieavy hauling over said streets 
pertained to the military reservation, and as the local authorities 
were unwilling to pay for such repair as would answer the needs of 
the post without contribution from the Oovernment toward such 
repair, it was competent to enter into a contract for the payment of 
one-third of the cost of the repair as proposed, and that the fact 
that the expenditure would be upon public streets over which 
the future hauling for the reservation would have to be done, might 
be regarded as ample assurance that the (xovernment would receive 
the benefit of the expenditure. 

(5-24T, J. A. G., Feb. 24. 1913.) 



RESPONSIBILITY: For damage to public property through neglect. 

A private soldier was charged with the duties of janitor at a 
post exchange building provided with a steam-heating plant. The 
weather turned suddenly cold and the heating system froze up, 
resulting in the bursting of pipes and other connections to the dam- 
age of about $100. The heat maintained in the system was sufficient 
to have prevented its freezing up under ordinary conditions at 
that season of the year, but not during the unusual cold spell which 
occurred, and the soldier was negligent in failing to keep up proper 
heat under the conditions which existed. The system, however, was 
defective in that it did not drain ])roperly, and water was conse- 
quently left standing in the pipes, the freezing of which caused the 
damage. 

IlelfU that the soldier was responsible only for the reasonable and 
]irobable results of his own negligence ; that the damage was not the 
direct result of his neglect, but was due to the defective heating 
system, which shoiild have permitted the drainage of the Avater from 
the pipes; and that consequently the amount of the damage should 
not be deducted from the soldier's pay. The punishment for this 
neglect, if any, should be inflicted through the medium of a proper 
court. 

(80-016, J. A. G., Feb. 13, 1913.) 



SUPPLIES: Electric light; payment for electric current not included in 
regular bills through failure to be registered by the meter 

By reason of defective wiring a portion of the current used in 
electric lighting at an Army post did not pass throngli the meter 
and consequently was not taken up and paid for in the monthly 
bills for lighting. Afterwards the mistake was discovered and a 
bill presented for the estimated amount of current so consumed and 
not paid for. The contractor furnishing the light was himself 
negligent in installing wiring in such a manner as to cause such 
defective registering of the current used. Held, that the previous 
settlements of accounts for lighting were not conclusive so as to 
])reclude a reopening of the account and the payment for the current 
eri'oneously omitted by nuitual mistake from pre\'ioiis bills, and 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 163 

that the fact that the contractor hhnself may have contributed to 
the mistake was immaterial, as no damage was caused thereby for 
which compensation was sou2:ht. 
(76-732. J. A.'G., Feb. 21.1913.) 



SUPPLIES: Purchase of, for Walter Reed General Hospital, District of 
Columbia. 

Section -t of the act of June 17, 1910 (36 Stat., 531), provides 
generally that all supplies, fuel, ice. stationery, and other miscel- 
laneous supplies " for the executive departments and other Gov- 
ernment establishments in Washington,'' when the public exigencies 
do not require immediate delivery, " shall be advertised and con- 
tracted for by the Secretary of the Treasury," and provides for a. 
general supply committee to make an annual schedule of the re- 
quired miscellaneous supplies and to perform certain other duties 
connected with carrying the provisions of said act into effect. 

On request for an opinion as to whether supplies required for the 
Walter Eeed General Hospital, Takoma Park, D. C, must be secured 
under contract Avith the general supply committee in pursuance of 
said act, hehl, that inasmuch as said hospital is not a part of the civil 
estaldishment known as the War Department, but is substantially 
an Army hospital or post located for convenience in the District of 
Columbia, the supplies necessary therefor, the same as those required 
for the military post of Washington Barracks, should be procured 
under a contract made with the proper department of the Army, and 
that the act of June 17. 1910, has no application. 

(.14-120.1, J. A. G., Feb. 28, 1913.) 



TRANSPORTATION: Of household effects on cha'ng-e of station. 

An officer was directed to change station to a post where there 
were no available quarters for his accommodation, and had his 
household effects shipped to the post and stored in the warehouse 
of the depot quartermaster until such time as he could secure quar- 
ters for himself. Upon securing such quarters, he was informed that 
he would have to bear the expense of hauling his goods from the 
Avarehouse to his residence, situated some distance from the post, 
and he was consequently compelled to move them at his own expense. 

Held, that the officer on change of station was entitled to have his 
authorized allowance of household effects transported to his new sta- 
tion at public expense, and, if quarters in kind were not available 
and he was compelled to procure quarters for himself, this included 
transportation to the quarters thus secured; but his quarters must be 
selected with a view to public interests rather than according to his 
own preference, and he was only entitled to have his allowance of 
]>ersonal effects transported at public expense to the neai'est point 
to his post of dut}^ where he could have procured suitable quarters 
at an expense commensurate with his salary; held, therefore, that the 
officer should be reimbursed in this case to the amount that it would 
have cost the Government to have transported his effects from the 



164 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

warehouse of the depot (luartermaster to quarters selected within 
such limits. 

(94-2:33. J. A. G., Feb. 14, 1913.) 



TRANSPORTATION: Use of parcel post; appropriation for postage. 

The act of August 24, 1912 (37 Stat., 580), under the heading 
'' Incidental expenses. Quartermaster's Department," names " post- 
age" as one of the items for which appropriation is made. The 
Postmaster General having decided that parcels exceeding 4 pounds 
in weight can not be sent by the ordinary Government frank, but 
require parcel-post stamps if transported through the postal service 
provided for under the parcel-post act of August 24, 1912 (37 Stat., 
539), hey], that the parcel-post act did not broaden the f ranking- 
privilege to cover the service within the scope of that act. and where 
it is desired to send packages coming within the operation of the 
l)arcel-post act, it will be necessary to purchase parcel-post stamps 
therefor ; held further, that the appropriation for postage mentioned 
in the Army appropriation act of August 24, 1912, under " Incidental 
expenses. Quartermaster's Department," was intended to cover post- 
age to foreign countries and registration of packages, and that if 
packages are sent by parcel-post for the Army it will be necessary 
to purchase the stamps therefor from the appropriation for the 
transportation of the Armv and its supplies. 

(22-020, J. A. G., Feb. 7, 1913.) 



TRANSPORTATION: Furnishing sleeping-car accommodations to enlisted 
men. 

The Army Regulations provide for second-class transportation and 
tourist sleeping-car accommodations for enlisted men not noncom- 
missioned officers traveling on trains, but make no provision for 
them where such second-class transportation and tourist sleeping- 
car accommodations are not available. The instructions of the 
Quartermaster General of ^Nlay 18, 1912, absolutely prohibit the 
issue of standai-d sleeping-car accommodations to enlisted men not 
noncommissioned officers. Five private soldiers were furnished, 
upon Government transportation request, with standard sleeping- 
car accommodations in connection with first-class transportation for 
u journey requiring night travel, no second-class transportation or 
tourist sleeping-car accommodations being available. Field, that an 
order involving transportation of enlisted men by train is sufficient 
authority for procuring the usual and most available means of ti-ans- 
portation where the class prescribed by the regulation is not obtain- 
able ; that it was competent, however, for the Quartermaster General 
to prohibit the furnishing of standard sleeping-car accommodations 
to enlisted men, not being noncommissioned officers; and that as the 
' transportation in question Avas furnished contrary to such instruction 
of the Quartermaster (jeneral, the cost thereof should be charged to 
the officer res])onsible for furnishing the same. 
(94-240, J. A. G., Feb. 5, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 165 

DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepareil in the office of tlie Judge Advocate (Jeneral.) 

AHMY: Burial expenses of officers and soldiers and of civilian employees; 
retired officer on active duty. 

Appropriation is made for the disposition of the remains of officers 
and soldiers and of civilian employees of the Army for the fiscal 
year 1913, in the sundry civil act of August 24, 1912 (37 Stat., 440), 
as follows: 

" Disposition of remains of officers, soldiers, and civilian em- 
ployees, and so forth : For the expense of interment, or of prepara- 
tion and transportation to their homes or to such national ceme- 
teries as may be designated by proper authority, in the discretion of 
the Secretary of War, of the remains of officers, including acting 
assistant surgeons and enlisted men of the Army active list • * * * 
and in any case where the expenses of biudal and shipment of the 
remains of officers or enlisted men of the Army who died on the 
active list are borne by individuals, where such expenses would have 
been lawful claims against the Government, reimbursement to such 
individuals may be made of the amount allowed by the Government 
for such services, * * * $57,500." 

A decision of the comptroller was desired as to whether payment 
was authorized of the expenses of preparing for shipment and cost 
of transporting from Little Rock, Ark., to the Arlington, Va., Na- 
tional Cemetery for burial, the remains of a retired Army officer 
who had died while on active duty as recruiting officer at the I'ecruit- 
ing office at Little Eock, Ark. He had been assigned to such duty 
under authority of the act of April 23, 1904 (33 Stat., 2G4), which 
provides : 

" The Secretary of War may assign retired officers of the Army, 
with their consent, to active duty in recruiting * * * and such 
officers while so assigned shall receive the full pay and allowances 
of their respective grades." 

Held., that the expense of preparing and transporting the remains 
of an officer did not constitute a part of the pay and allowances of 
said officer's grade, but was in the nature of a gratuity Avhich the 
Government voluntarily assumed for the benefit of the deceased 
officer's family or estate ; that there was no other appropriation avail- 
able for the payment of such expense than that contained in the act 
above cited, wdiich limited payments to cases of deceased officers and 
soldiers on the active list; that the act of April 23, 1904, authorized 
the assignment of retired officers to active duty, but did not authorize 
their restoration to the active list; and that the officer in this case, 
not being on the active list, payment of the expenses in question was 
not authorized. 15 C'omp. Dec, 230, 235. 

(Comp. of the Treas., Feb. 20, 1913.) 



COMMUNICATIONS: Telegrams sent to delinquent contractors. 

Two telegrams were sent by the Army quartermaster to as many 
delinquent contractors for furnishing supplies, urging immediate 
compliance with their contracts, and another to a contractor notify- 



166 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

ing him that supplies shipped by him under his contract were unfit 
for use. The tek^grams were not sent in reply to any telegram or 
communication from the contractors, but were sent by the (lovern- 
ment agent in the proper and orderly transaction of tiie business of 
his office. 

Held., that such telegrams were on official business, and payment 
therefor was authorized if the account was otherwise correct. 

(Comp. of the Treas., Jan. 7, 1913.) 



COMMUNICATION'S: Telegra^lns making' inquiries as to whether certain 
persons were wanted as deserters. 

Telegrams Avere sent collect to The Adjutant General of the Army 
from different sources, inquiring whether certain men named or 
described were wanted as deserters from the Army, no request having 
been made for such telegrams. It did not appear whether the men 
were subsequently delivered up as deserters or not. 

FleJd^ that Army Regulation 121 of 1910 was made in pursuance of 
a statute authorizing the offering of rewards for the apprehension 
and delivery of deserters from the Army, and provides that tlie re- 
ward " will be in full satisfaction of all expenses for arresting, keep- 
ing, and delivering the deserter or other escaped military prisoner," 
and that the reward should include the cost of these telegrams, which 
should have been paid for by the persons sending them and receiving 
the rcAvards. The telegraph company should be informed that it 
must look to the respective senders for pavment. 

(Comp. of the Treas., Feb. 3, 1913.) 



CONTRACTS: Construction of; damages for failure to make delivery within 
a specified time. 

A Government contract for the purchase of oats during the fiscal 
year 1912 provided for the delivery of said oats during various 
periods and at different prices for said periods as follows: For oats 
delivered and accepted during the months of October, November, and 
December, at the rate of $1.53 per hundredweight ; for deliveries dur- 
ing January, February, and March, 1912, at the rate of $1.61 per 
hundredweight; and for deliveries during April, May, and June, 
1912, at the rate of $1.67 per hundredweight. Provision was also 
made for increasing or diminishing the quantities mentioned in the 
contract not to exceed 20 per cent at the option of the United States 
'• at any time during the continuance " of the contract. On March 
18, 1912, when the full contract quantity had been ordered, and, so 
far as appeared, had been delivered, the contractor was advised by 
the Government that it would exercise its option of ordering the 
increased quantity of 20 per cent; and on the next day he was caUed 
upon to furnish such additional amount, the same to be delivered 
on or before March 31, 1012, at $1.61 ])er hundredweight, as provided 
for deli\'eries made and accepted during that month. The amount 
called for was delivered and accepted some days after March 31, 
1912. Payment at the rate specified for deliveries during that month 
was accepted by the contractor imder protest, and he presented a 



DIGEST -OF OPIlSriONS OF THE JUDGE ADVOCATE GENEKAL. 167 

claim for the difference between the price paid and the price fixed 
for deliveries after March 31, 1912, amonnting to $252.48. The Gov- 
ernment under the contract had a right, had the order of March 19, 
1912, been given within sufficient time to allow delivery by the end 
of that month, to cancel the order upon failure of the contractor to 
make such delivery and to purchase a like quantity of oats in open 
market, charging the contractor with the difference between the con- 
tract price and the price which the Government would have been 
compelled to pay in excess thereof. 

On appeal from the action of the Auditor for the War Department 
disallowing the claim: HeM., that the parties to the contract having 
provided a remedy and a measure of damages in case of failure of 
the contractor to make deliveries within the time specified, to wit, 
the purchase by the Government in open market of oats of the quan- 
tity and kind demanded under the contract, charging the contractor 
with the difference in price if in excess of the contract price, and the 
Government not having exercised its right, but having accepted 
deli^■ery within the period for which payments should have been 
made at the rate of $1.67 per liundredAveight. the oats so delivered 
must be paid for at that rate, as provided in the contract. The claim 
was therefore allowed. . 

(Comp. of the Treas., Feb. 17, 1912.) 



GOVERNMENT AGENCIES: Stoppage of soldier's pay to reimburse a post 
exchange for overpayment in cashing his final statements. 

A man enlisted at Jefferson Barracks, Mo., August 27, 1900, and 
was discharged August 2(1. 1912, at Fort Rosecrans, Cal., by expira- 
tion of enlistment. His final statements on discharge were cashed 
by the post exchange at Fort Rosecrans upon the basis that he was 
entitled to mileage from the place of enlistment to the place of dis- 
charge at the rate of 1 cents per mile, whereas the soldier having 
been discharged after the passage of the Army appropriation act of 
August 21, 1912 (37 Stat,, 576), was entitled to mileage only at the 
rate of 2 cents per mile for such travel, having elected to receive 
such mileage instead of transportation in kind and subsistence. He 
was thus overpaid by the post exchange on his final statements the 
sum of $43.07. and having since reenlisted the amount was collected 
from him on the pay roll of his company and deposited to the credit 
of the United States, with the evident purpose of reimbursing the 
post exchange. The cashing of the final statements by the post 
exchange was purely a matter of accommodation to the soldier. 

On claim by the soldier for reimbursement : HeJd^ that the post 
exchange was not a voluntary association, but an institution estab- 
lished by the Government for the use and discipline of the enlisted 
men, and that the collection from the soldiei* was properly made. 

(Comp. of the Treas., Feb. 8, 1913.) 



PRIVATE PROPERTY: Loss of horse belonging to an Army officer while 
in the service; act of March 3, 1885. 

The act of March 3, 1885 (23 Stat.. 350). provides: "That the 
proper accountijig officers of the Treasury be, and they are hereby, 
authorized and directed to examine into, ascertain, and determine 



168 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL.. 

the value of the private property belonging to officers and enlisted 
men in the military service of the United States which has been, or 
may hereafter be, lost or destroyed in the military service," under 
certain conditions stated 

Certain provisos were added, among them the following: 

''''Provided^ That any claim which shall be presented and acted 
on under authority of this act shall be held as finally determined 
and shall never thereafter be reopened or considered * * * : And 
'provided further^ That the liability of the Government under this 
act shall be limited to such articles of personal property as the Secre- 
tary of War, in his discretion, shall decide to be reasonable, useful, 
necessary, and proper for such officer and soldier while in (juarters, 
engaged in the public service, in the line of duty." 

A captain of the Army claimed under said act reimbursement in 
the sum of $450, alleged value of a horse owned by him Avhich had 
died of pneumonia contracted on shipboard while being transported 
to the officer's station in Cuba, the officer then being in the service 
of the United States. The Auditor for the War Department disal- 
lowed the claim on the ground that the horse had died of a disease 
not necessarily incident to or peculiar to the military service. The 
Assistant Comptroller dismissed the appeal from this decision for 
the specific reason that a horse is not an article of property belonging 
to an officer or an enlisted man in the military service within the 
purview of said act of Congress. The Secretary of War had certified 
that the horse Avas useful, necessary, and proper for this officer while 
in quarters, engaged in the public service in line of duty. 

On reconsideration of the appeal : Held^ that the term " article of 
personal property " mentioned in the proviso above quoted includes 
a horse, which therefore comes within the provisions of said act of 
Congress, and reimbursement may be made of the value of a horse 
lost in the service, if the case otherwise comes within the provisions 
t)f said act. The appeal was therefore reopened, and the claim hav- 
ing been found to come within the requirements of law, the same was 
allowed, reversing the decision of the Assistant Comptroller in the 
same case in IS Comp. Dec. 47, of July 24, 1911. 

(Comp. of the Treas., Feb. 19, 1913.) 



QUARTEHS: Right to, while stationed at the home port of a transport on 
which he performed temporary service. 

An officer of the Army Avas assigned to duty in the Army Trans- 
port Service with station at the home port of a transport, and actu- 
ally took station at such port, and was assigned to duty as transport 
quartermaster for a particular voyage involving' temporary ab- 
sence from his station. On his return he was to resume duty at 
the home port unless otherAvise ordered. TlchU that the officer came 
Avithin the operation of that part of paragraph 1325 of the Army 
Regulations of 1910 AA'hich reads: 

''An officer does not lose his right to quarters or commutation at 
his permanent station by a temporary absence on duty." 

(19 Comp. Dec, 94, Aug. 19, 1912.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 169 

QUARTKRS: Bight of veterinarians to, while temporarily absent from their 
stations. 

A veterinarian, United States Army, was ordered to proceed in 
company with a commissioned officer to various points, as might 
be necessary, for the purpose of inspecting horses for the Army, 
upon completion of Avhich duty he was to return to his proper sta- 
tion. He was absent on such duty from March 26 to May 23, 1909, 
upon which hitter date he returned to his station. 

The act of February 2, 1901 (31 Stat., 753), provides that veterina- 
rians " shall receive the pay and allowances of second lieutenant, 
mounted," and the act of May 11, 1908 (35 Stat., 113), appropriates 
for commutation of quarters to commissioned officers of the Army 
Avithout troops at stations Avhere there are no public quarters. 

Ileld^ that an Army veterinarian, on temporary duty Avithout 
troops at stations Avhere public quarters were not available, Avas en- 
titled to the same commutation of quarters as a second lieutenant of 
the Army under like conditions; and held further, that he Avas en- 
titled to be paid said commutation from the same appropriation as 
that from Avhich commissioned officers are paid such c(nnmutation, 
reA^ersing on this proposition 15 Comp. Dec, 822 and 18 id., 937. 

(19 Comp. Dec, 341, Dec 9, 1912.) 



TRAVEL ALLOWANCES: On discharge; computing distance for the pur- 
pose of furnishing transportation and subsistence. 

The act of August 24, 1912 (37 Stat., 576), provides for the fur- 
nishing to a soldier on discharge, except by AAay of punishment for 
an offense, transportation in kind and subsistence from place of dis- 
charge to place of enlistment or to such place " Avithin the con- 
tinental limits of the United States as he may select, to Avhich the 
distance is no greater than from the place of discharge to place of 
enlistment." The act does not except sea travel in computing the 
distance from place of discharge to place of enlistment for the pur- 
pose of furnishing transportation in kind and subsistence, but does 
specifically except such travel in computing said distance foi- the 
purpose of paying mileage on discharge Avhere the soldier elects to 
receive mileage. 

Held, that a soldier enlisting in the Philippine Islands and dis- 
charged in the United States, not by way of punishment for an 
offense, may be furnished transportation in kind and subsistence to 
any place within the continental limits of the Ignited States which 
he may select, such distance being less than that from place of dis- 
charge to place of enlistment computed by including sea travel. 

(Comp. of the Treas., Feb. 28, 1913.) 



TRAVELING EXPENSES: Payment of; to civilian employee on termina- 
tion of journey. 

A clerk was transferred, under orders, from the office of the depot 
({uartermaster, Washington, D. C, to duty with the depot quarter- 
master at Omaha, Nebr., at an increased compensation effective on 



170 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the date whon he should assume duty at Omaha. lie arrived at 
Omaha at 11.15 p. m., and reported for duty to the depot quarter- 
master at said place the next morning. His expenses for lodging 
on the night of his arrival, and breakfast the next morning, amount- 
ing to $1.75, were disallowed by the Auditor for the War Department 
in the account of the disbursing officer making the payment. Held, 
on appeal to the Comptroller, that the clerk having been ordered to 
change station from Washington to Omaha, the latter became his 
new and permanent official station; that his travel upon official busi- 
ness ceased upon his arrival at his new station; and that he ceased 
to be entitled to lodging and subsistence as a part of his actual 
expenses of travel upon such arrival. The auditor's action w^as, 
therefore, affirmed. 

(Comp. of the Treas., Feb. 27, 1913.) 



TRANSPORTATION: Through-party rate. 

Transportation was furnished for 50 men from Columbus, Ohio, 
to Fort Sill, Okla., on a single ticket issued in pursuance of a trans- 
portation request. A notation on the back of the request read: 

" Settlement at special rate as per agreement * * * between 
the quartermaster, Columbus Barracks. Ohio, and the Baltimore 
& Ohio Southwestern Railroad Co." 

Said agreement provided for the transportation of 50 men, more 
or less, from Columbus, Ohio, to Fort Sill. Okla., at a rate of $21.71, 
first class net per capita, unless the said rate should subsequently 
be foimd to be in excess of the regular tariff rates less land-grant or 
other lawful deductions to which the Government was entitled, in 
which case the lower rate should govern. The legally authorized 
rate for the distance under consideration available to the general 
public and to the Government was $23.15, chargeable to any party 
of 50 persons traveling together on one ticket as this party was 
traveling. The land-grant deduction, to which the Government 
was entitled, reduced tlids rate to $19.79 for each man. 

TIel(U that the net rate available to the Government, computed by 
taking the authorized land-grant from the regular tariff rate, being 
less than the specific rate named in the s])ecial contract, such net rate 
is the one required both by law and by the contract, and settlement 
should be made accordingly. 

(Comp. of the Treas., Feb. 25, 1913.) 



DECISIONS OF THE COITRT OF CLAIMS. 

(Disoi^ts iiropnrod in the office of the Tiuliro Advocate ('.eiieral.) 

CONTRACTS: Liquidated damages; set-off against prior overpayment. 

A contract Avas entered into for the construction of a vessel for the 
War Department, which ccmtained a provision for the jiayment of 
$50 per day as liquidated damages for every day of delay beyond 
the contract time for completion of the vessel, exclusive of Sundays 
and legal holidays. At the request of the contractoi-, the Quar- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 171 

termaster General of the Army verball}' waived the time limit, and 
afterwards confirmed the verljal waiver by letter. The contractor 
delayed completion of the vessel for 95 days after the time fixed by 
the contract exclusive of Sundays and legal holidays, but payment 
was made in full without reduction for such dehiy. Subsequently 
the same contractors completed another contract for the construc- 
tion of a vessel for the United States, and in making payment 
therefor the Government officials withheld an amonnt sutKcient to 
cover the liquidated damages arising under the first contract at the 
I'ate specified therein. It was not shown that the Government suf- 
fered any actual pecuniary damage by the delay in completing the 
first contract. 

11 eld ^ that the waiver of the time for the completion of the first 
contract was not a waiver of the right of tlie Government to claim 
liquidated damages for such delay, the Government not being re- 
sponsible for the delay and the waiver not fixing any new date from 
which to compute the li(|uidated damages: and held further^ that 
the amount of such liquidated damages might be deducted in making- 
settlement for the work done under the last contract. Wisronsin ('en- 
fral Railroad Co. v. United States (164 U. S., 190, 212), and other 
cases cited. 

{Maryland Steel Co. \., United States, Ct. Cls., No. 31281, Dec. 2, 
1912.) 



GOVERNMENT AGENCIES: Responsibility of an officer of the Marine 
Corps for post exchange funds under his control. 

An officer of the Marine Corps was duly designated as post ex- 
change disbursing officer, and came into possession of moneys in said 
capacity under proper orders pursuant to Navy Regulations. The 
Navy Regulations at the time provided for the establishment of post 
exchanges, the method of conducting the same and their sources of in- 
come, the manner of keeping accounts, etc. A board of officers ap- 
pointed to audit the post exchange officer's accounts reported that a 
shortage existed, but that in their opinion the same "did not result 
from any carelessness, neglect, or misappropriation " on the part of 
such officer. The findings of the board were immediately disapproAed 
by the commanding officer. A second board, convened for the pur- 
pose of investigating the alleged theft of funds from the post ex- 
change officer, reported that it w^as unable to obtain evidence fixing 
the guilt upon any person or persons. This report was likewise dis- 
approved by the commanding officer of the post. Thereafter a court 
of inquiry was convened at Washington, D. C, for the purpose of in- 
vestigating the alleged theft of funds from said officer, and reported 
that the officer, " as custodian, has failed to show satisfactorily that 
the money was taken from him through no neglect of his own," and 
that he " was responsible for the funds of the post exchange, company 
fund, commissary fund, and bakery fund, to the amount of $959.08, 
for which he has failed to satisfactorily account."' The officer having 
died, the board recommended that his decedent be held responsible 
and the amount deducted from any pay that might be found to be 
due to the deceased officer, and such amount refunded to said funds. 
The proceedings, findings, and recommendations were approved by 
the commanding officer of the Marine Corps, and also by the Secre- 



172 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

tary of the Navy. The court found that the amount stated " was lost 
through the fault or negligence of plaintiff's intestate" (the post ex- 
change officer). The deduction was made according to the recom- 
meridations of the board, and the administrator of the deceased officer 
brouglit an action for the recovery of the amount. 

Ildd^ that under the regulations of the Navy Department the post 
exchange was not a voluntary association, but an institution estab- 
lished by the Government for the convenience of the officers, and 
more particularly for the discipline of the enlisted men, and the 
regulations establishing the same conflicted with no law ; that the 
funds received by the post exchange officer in this case, by an act of 
the United States, came into his keeping, not as a private individual, 
but as a disbursing agent for the Government and for the use and 
benefit of the marines; and that, inasmuch as it was shown that the 
officer was at fault and did not properly account for the funds which 
came into his hands, the plaintiff was not entitled to be relieved from 
the deduction made from the officer's pay. 

{Wooq^ adminhtrator, v. United States, Ct. Cls., No. 29805, Jan. 
13, 1913!) 



BULLETIN 13. 

Bui^LETiNl WAR DEPARTMENT, 

No. 13. J Washington, April 2, 1913. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of March, 1913, and of certain decisions 
of the Comptroller of the Treasury, and of an opinion of the Attorney 
General is published for the information of the service in general. 
[2023920, A. G. O.] 
By okder or the Secretary of War : 

LEONARD WOOD, 
Major General., Chief of Staf. 
Official : 

GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

APPROPRIATIONS: Contingencies, headquarters of military departments; 
availability for brigade and Coast Artillery district headquarters. 

The Army appropriation act of March 24, 1912 (37 Stat., 570), 
appropriates as follows: 

"Contingencies, headquarters of military departments: For con- 
tingent expenses at the headquarters of the several military divi- 
sions and departments, including the Staff Corps serving thereat, 
* * * to be allotted by the Secretary of War. and to be expended 
in the discretion of the several military division and department 
commanders, $7,500." 

Under recent regidations promulgated in General Orders, No. 9, 
War Department, 1913, territorial divisions and departments were 
superseded by territorial departments, and tactical divisions and 
brigades were organized. 

Held., that the words " headquarters of the several military divi- 
sions and departments" could not be construed to include brigade 
and artillery district headquarters, and that said appropriation was 
therefore not available for allotment to brigade or artillery district 
headquarters. 

(5-214, J. A. G., Mar. 22, 1913, and 52-241, Mar. 25, 1913.) 



APPROPRIATIONS: Incidental expenses of holding an international rifle- 
shooting competition. 

The Army appropriation act of March 2, 1913 (Public, No. 401, 
p. 9), appropriates— 

'' To meet expenses incident to holding an international rifle-shoot- 
ing competition at Camp Perry, Ohio, in cooperation with the Perry 

173 



174 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Victory Centennial Celebration; to* be held in September, 1013, 
* ••= * $-J5.000." 

On submission for opinion of certain questions relating to the 
above appropriation, held, that, as it was the common pi-actice to 
offer cash prizes and medals to be competed for at events of this 
character, expenditures for said purposes were proper incidental ex- 
penses of the competition, and might be paid from the appropriation 
therefor; that the expenses of the assistant recorder of the national 
board for promotion of rifle practice for necessary trips between 
Washington and Camp Perry could not be paid from said appropria- 
tion, as more specific provision was made therefor in the same act 
(p. 20) under the head "National trophy and medals for rifle con- 
tests''; and that expenses for the transportation, subsistence, and 
entertainment of visiting foreign teams while in the United States 
might be met from said appropriation as incidental expenses thereof, 
in view of the international character of the competition and the 
evident purpose to reciprocate for similar favors extended to teams 
from the United States visiting like competitions abroad. 11 Comp. 
Dec, 344. 

(5-249.7, J. A. (1., Mar. 18, 1013.) 



BONDS: For the return of property; execution of; seals. 

A bond was given by eighteen members of the executive board of 
an organization intended to secure tlie return of certain tents and 
cots loaned by the United States. Objecticm was made that the per- 
sons executing the bond had not afHxed their seals. It appeared that 
the word "seal" was printed after each of the first four signatures 
to the bond, but that nothing corresponding to a seal appeared after 
any of the other signatures. The instrument recited that it was 
"• given under our hands and seals." 

Held, that in view of the recital in the instrument that it was exe- 
cuted under the hands and seals of the obligors, the persons signing 
and after whose names no seals appeared must be assumetl to have 
adopted the seal of the first four signing the instrinnent, and that the 
printed word "seal " was a sufficient sealing of the bond. Rockwell 
V. Capitol Traction Co. (25 App. Cases D. C, 98). 

(12-132, J. A. G., Mar. 26, 1013). 



CLERKS AND EMPLOYEES: Classified civil service; filing and service of 
charges. 

Section G of the Post Office appropriation act of August 24, 1012, 
(37 Stat., 555), proN'ides: 

"That no person in the classified civil service of the United States 
shall be removed therefrom except for such cause as will promote the 
efficiency of said service and for reasons given in writing, and the 
person whose removal is sought shall have notice of the same and of 
any charges preferred against him and be furnished with a copy 
thereof, and also be allowed a reasonable time I'or personally answer- 
ing the same in writing; and affidavits in support thereof; but no 
examination of witnesses nor any trial or hearing shall be refjuirod 



DIGEST OF OPIlSriONS OF THE JUDGE ADVOCATE GENERAL. 175 

except in the discretion of the officer making the removal, and copies 
of charges, notice of hearing, answer, reason for removal, and of the 
order of removal, shall be made a part of the records of the proper 
department or office, as shall also the reasons for reduction in rank 
or compensation; * * *." 

Two officers in the classified civil service were charged Avith negli- 
gence in connection with the sinking of a Ciovernment vessel at the 
dock by reason of water entering a porthole which had been left open, 
and it was proposed to take disciplinary action against them. It 
appeared that the specific acts and omissions which constituted the 
negligence charged against the* officers w-ere stated in writing and 
given to both officers: that they were furnished with copies of the 
charges and were allowed a reasonable time for personally answering 
the same in writing, whicli they did in full; that no affidavits were 
filed by the Government in respect to the charges, the facts concern- 
ing the sinking of the vessel having been taken cognizance of by the 
military authorities and reported upon in the performance of their 
duties; and that the only question was as to the legal inference of 
negligence to be drawn from the facts stated and admitted. Subse- 
quently an inspector, by order of the Secretary of War, made the 
usual military investigation, of which the two officers had actual 
notice, and during which they testified before the inspector. 

Held^ that the investigation by the inspector w^as not a trial, as 
that officer Avas not a tribunal, and that the requirements of said sec- 
tion of the act of August 24, 191'2. regarding the reduction in rank 
and compensation of classified emplo^yees in the civil service, had 
been fully complied with in said cases ; held further^ that the negli- 
gence being established, the proper authority might, for the purpose 
of guiding his discretion in determining Avhat action should be taken, 
inform himself of the general efficiency of said officers, but that in 
case of discharge general inefficiency would not become the real and 
legal reason for such action. 

(16-210, J. A. G., Mar. 12, 1913.) 



CONTRACTS: Relief against, where deliveries were discontinued by reason 
of the removal of troops. 

Contracts were entered into for the delivery of hay, straw, and 
other forage at certain posts within the fiscal year 1913, from time 
to time as ordered, each contract containing a clause reading as 
follows : 

'' If during the period of this contract the troops or garrison be 
withdrawn in Avhole or in part from the post or station, or other 
radical change be made in the service by which the supplies will 
not be required, the contract shall become inopei'ative accordingly." 

Troops Avere AvithdraAvn from the posts indicated for concentration 
at Galveston, Tex., and further deliveries under the contracts Avere 
in consequence discontinued. The contract price for the delivery of 
the forage at the posts contracted for Avas greater in all cases than 
the cost of obtaining such material in the open market at Galveston. 

Held., that the Government, by discontinriing deliveries under the 
contracts, had only exercised an indisputable right Avhich the Gov- 
ernment officials Avere not at liberty to disregard, and that nothing 
could be done to relieAe the contractors from the operation of the 



176 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

plain terms of their contracts, but that where special orders had been 
given for deliveries and the contractors had begun the work of filling 
such orders, the same might properly be completed, although the 
Government might not have immediate use for the forage at the 
places of delivery and might be compelled to ship it elsewhere for use. 
(76-700, J. a: G., Mar. 15, 1913.) 



DETACHED SERVICE: Details to the Bureau of Insular Affairs from the 
line of the Ai-my. 

The Army appropriation act of March 2, 1913 (Public, Xo. 401, 
p. 3), contains the following provision: 

'■'■Prorided^ That hereafter, in determining the eligibility, under 
the provisions of the act of Congress approved August Twenty- 
foui'th, nineteen hundred and twelve, of troop, battery, or company 
officers for detail as officers of the various staff corps and depart- 
ments of the Army, except the General Staff Corps, service actually 
performed by any such officer with troops prior to December fif- 
teenth, nineteen hundi-ed and twelve, as a regimental, battalion, or 
squadron staff officer, shall be deemed to have been duty with a bat- 
tery, company, or troop: * * *." 

ilcld^ that the detail of a line officer of company grade as an officer 
of the Bureau of Insular Affairs was within the purview of the de- 
tached service provision contained in the Army appropriation act 
of March 2, 1013. 

(C-121, J. A. G., Mar. G, 1013.) 



DETAILS OF OFFICERS: Educational institutions; detail of more than one 
to each institution. 

On submission of the question as to whether or not, under the laws 
governing the detail of officers of the Army for duty in connection 
with military instruction at educational institutions, more than one 
officer may be detailed for such duty at any one institution, 

IJeld^ tiiat only one officer on the active list, or one retired officer 
entitled to active pay subject to the limitation imposed by the act of 
March 3, 1900 (35 Stat., 758). might be detailed for such duty at any 
one institution: but that, in addition to one officer on the active list, 
or one retired officer entitled to', full pay subject to the limitations 
mentioned, detailed for such duty at an institution, a retired officer, 
who would be entitled to no compensation from the Government 
other than his retired pay, might be detailed for duty at the institu- 
tion, if in the judgment of the 'President the additional detail was 
necessary. 

(5G-3i4, J. A. G., Mar. 18, 1013.) 



DISCIPLINE: Donation of $5 to enlisted men dishonorably discharged from 
the service. 

The Army appropriation act of August 24, 1912 (37 Stat., 580), 
appropriates — 

" For a donation of five dollars to each dishonorably discharged 
prisoner upon his release from confinement, und(>r court-martial 
sentence involving: dishonorable discharge." 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 177 

The same provision has been made in Army appropriation acrs 
for many years past. Two soldiers of the United States Army were 
tried by court-martial and each sentenced — 

" To be dishonorably discharged the service of the Ufiited States, 
forfeiting all pay and allowances due and to be confined at hard 
labor at such place as the reviewing authority may direct for ten 
years." 

The sentences were approved, except that the punishment by con- 
finement was remitted. 

Held^ that the sentence of a court-martial was not complete until 
acted upon by the reviewing authority, and that the sentence in 
these cases when so acted upon amounted merely to dishonorable 
discharge without involving any term of confinement; but, held 
further^ that payment of the $5 provided for in said appropriation 
act could be paid to the soldiers in the cases mentioned, although no 
term of confinement was involved in the sentences, if they had been 
confined as a result of the charges brought against them and were 
to be released from such confinement on discharge. C. 2925, Feb. 9, 
1897; Jan. 4, 1912; decision of the Secretary of War, par. 4, circ. 
No. 4, A. G. O., 1897. 

(30-824.1 J. A. G., Mar. 11, 1913.) 



DISCIPLINE: Power to appoint summary courts. 

The first section of the summary court act of June 18, 1898 (30 
Stat., 483), empowers " the commanding officer of each garrison, fort, 
or other place, regiment or corps, detached battalion, or company, 
or other detachment in the Army, * * * to appoint for such 
place or command, or in his discretion for each battalion thereof, a 
summary court to consist of one officer * * * " for the trial of 
enlisted men for offenses not capital, and provides further that 
" such summary court may be appointed * * * j^y superior au- 
thority when by him deemed desirable." 

The Second Division was concentrated in the vicinity of Texas 
City and Galveston, Tex., division headquarters and part of the divi- 
sion being encamped near the former, and the remainder of the 
division near the latter place. A question was presented as to the 
power to appoint summary courts for the trial of cases arising within 
the division but outside of regiments belonging thereto. 

Held., that the summary court act of June 18, 1898, authorized the 
commanding officer of a {a) garrison, fort, or other place, (6) regi- 
ment or corps, detached battalion, or company, or other detachment 
in the Amiy, to appoint for such place or command, or, in his dis- 
cretion, for each battalion thereof, a summary court for the trial of 
enlisted men for offenses not capital ; that the warrant of authority 
was based upon command and was expressed coordinately : First, 
with reference to the territory controlled by the appointing officer, 
and, second, with reference to the force thus controlled ; and that the 
warrant of authority to the territorial commander was not in terms 
exclusive of the authority of organization or detachment command- 
ers, nor was the warrant of authority to organization or detachment 
commanders in terms exclusive of the authority of the territorial 
commander. 

93668°— ] 7 12 



178 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ReM, further^ that in so far as the regiment to which a battalion 
normally belongs was concerned, the latter became " detached," 
within the meaning of the summary court act, when removed from 
the immediate command of the regimental commander, and remained 
"■ detached," so far as the administration of justice through summary 
courts was concerned, until it again came under the disciplinary 
control of the regimental commander, even though while so " de- 
tached" from the regiment such battalion came under the general 
command and control of an officer commanding a garrison, fort, or 
other place. 

Held furthevy that a battalion or squadron of Infantry, Field 
Artillery, or Cavalry was " detached," within the meaning of the 
summary court act, when such unit was isolated or removed from 
the immediate disciplinary control of the commander of the regi- 
ment of which it formed a part; that a battalion of engineers or a 
company of engineer. Coast Artillery, Signal Corps, or sanitary 
troops was " detached " in the same sense when isolated or removed 
from the immediate dicsiplinary control of a superior of the same 
branch of the service; and that within the meaning of the same act 
any body of troops was a " detachment in the Army " when desig- 
nated, pointed out, or separated from other troops in such manner as 
to make its commander primarily the one to be looked to by superior 
authority as the officer responsil)le for the administration of the dis- 
cipline of the enlisted men composing the same. 

Field further^ that the commanding officers of such units as an 
engineer battalion, signal corps company, field hospital, ambulance 
company, or field bakery, belonging to the Second Division concen- 
trated in Texas, if their respective commands were independent ex- 
cept in so far as they constituted parts of the division, and if their 
commanders were responsible directly to the di^asion commander for 
the maintenance of discipline in those commands, were competent to 
appoint summary courts for the same, subject to the right of the 
division commander to appoint summary courts for all subordinate 
organizations and detachments under his command, if by him deemed 
desirable, and subject also to the right of the detachment commander 
at Galveston to do likewise in respect of the subordinate organiza- 
tions and detacliments under his command. 

Held further^ that enlisted men of the Hospital or Quartermaster 
Corps on duty with the Second Division, who were not organized 
into units but were attached to a regiment or other unit the com- 
manding officer of which was competent to- appoint a summary court 
for the same, constituted part of the command of the officer com- 
manding the organization to which they were attached and were 
subject to trial by a summary court appointed by said officer. 

(30-730, J. A. G., Mar. Il,'l913.) 

Tlie Mounted Service School at Fort Riley, Kans., includes a school 
for field officers, one for company officers, one for farriers and horse- 
shoers, and one for bakers and cooks. The personnel of the school con- 
sists of the commandant, the school staff, the mounted-service school 
detachment, and tlie officers and men detailed for the course of in- 
struction in the several schools, the school staff consisting of all 
officei-s, not students, on duty with the school. The administration 
of the school is intrusted to the commandant, the school being gov- 
erned by the rules of discipline prescribed for military posts and by 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 179 

its own special regulations. The military personnel under the gen- 
eral command and control of the commanding officer of the post of 
Fort Riley, Kans., includes the personnel of the Mounted Service 
School. 

Held^ that the commandant of the Mounted Service School at Fort 
Riley, Kans., was the commander primarily to be looked to by 
superior authority as the officer responsible for the administration 
of the discipline of the enlisted men connected with said school; 
that in the sense of the summary court act the enlisted men under the 
command and control of the commandant of said school constituted 
a " detachment in the Army " ; and that the commandant was com- 
petent to appoint a summary court for the trial of enlisted men be- 
longing to his command, subject to the right of the commanding 
officer of the post of Fort Riley to appoint such court when by him 
deemed desirable. 

(30-730, J. A. G., Mar. 13, 1913.) 



DISCIPLINE: Remission of punishment; reduction in files and subsequent 
promotions. 

An officer of the Army was tried by a general court and sentenced 
" to be reprimanded by the reviewing authority and be reduced in 
military ran,k ten files in the lineal list of second lieutenants of 
Artillery." 

The sentence was approved, the reprimand administered, and the 
officer reduced in files according to the sentence. The officer was sub- 
sequently promoted to captain and the ten officers who gained one 
file each by reason of the sentence of the court had also been pro- 
moted. Application was made for the remission of the sentence 
reducing the officer in lineal rank. 

Ileld^ that the promotion of the officer suffering a reduction in files 
and the promotion of the ten officers benefiting in lineal rank by such 
reduction operated to make the punishment no longer a continuous 
one in the sense that it could be reached by the power of remission 
or by the power of pardon ; and that the case had passed beyond the 
power of the reviewing authority to remit the punishment. 

(68-111.1. J. A. G., Mar. 26, 1913.) 



EIGHT HOUR LAW: Work upon two contracts, both within the operation 
of the law. 

The following question was submitted for decision relative to the 
proper construction to be placed upon the eight-hour law of June 19, 
1912 (37 Stat., 137) : 

" Can a contractor work an employee eight hours in a calendar 
day upon one contract coming within the provisions of the eight- 
hour law and then work the same mechanic or employee upon another 
contract coming within the provisions of the law the same calendar 
day, whether or no the second contract covers a like or different 
material, and whether or no the second contract be from one depart- 
ment of the Government or another ? " 

The Attorney General, in an opinion dated October 3, 1912 (29 
Opin., 534), held that "the eight-hour workday restriction of the act 



180 DIGEST OP OPINIONS OF THE JUI>GE ADVOCATE GENEEAL. 

of June 19, 1912, known as the eight-hour law, applies only to work 
contemplated by the contract," and that, clearly, no penalty under 
authority of the act could be imposed if a laborer or mechanic 
should be required or permitted to labor more than eight hours a day 
upon some other work than that contemplated by the contract. 

Held^ that the opinion of the Attorney General could not be ex- 
tended so as to cover the case of a laborer or mechanic working more 
than eight hours a day upon two separate contracts, both coming 
within the restrictions of the law, no matter whether they cover like 
or different materials, or whether made by one department of the 
Government or by two. The question submitted was, therefore, 
answered in the negative. 

(32-300, J. A. G., Mar. 5, 1913.) 



MILITARY RESERVATION: Use of portion of reservation by the Organ- 
ized Militia of Idaho. 

The adjutant general of the State of Idaho requested that a certain 
portion of a United States military reservation in said State be 
either set aside for military purposes for the militia of said State or 
that said militia be granted permission to use such portion of the 
reservation for such purpose. It appeared that a certain portion of 
the reservation had been designated by the department as a mobiliza- 
tion camp ; that there were no other suitable grounds in the vicinity 
that could be obtained for the State militia encampment; and that in 
using the reservation in past years the State had expended a con- 
siderable amount in repairing the target range. Advised^ that in 
view of the fact that the reservation was not being used for military 
purposes, and that the use of the portion thereof for the purpose 
outlined would be of advantage to the United States, it would be 
proper to grant a revocable license to the State for the purposes 
stated, with the condition that the buildings and other property of 
the United States be kept in a thorough state of repair and returned 
to the Government in as good condition as when received. 

(80-816.1, J. A. G., Mar. 5, 1913.) 



MILITIA: Reserves; payment, from Federal appropriations, for attendance 
at maneuvers and camps of instruction. 

Upon submission of the following questions concerning reserves 
of the Organized Militia, viz : 

"(a) Where the law of a State provides for such reserves and 
authorizes their attendance at annual encampments or maneuvers, 
for the purpose of filling organizations to the prescribed strength, 
would officers and men of the reserve be entitled to active pay while 
on said duty? 

"(&) Would officers and men of the reserve be entitled to pay if 
ordered to encampments, maneuvers, etc., for active duty and not 
attached to any organization, but form separate companies, bat- 
talions, etc., organized as prescribed for the active militia under the 
militia law ? " 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 181 

Held, that the portion of the permanent annual appropriation for 
the support of the militia which was available for and devoted to 
paying the militia for attendance at maneuwers and camps of in- 
struction was payable only to the regularly enlisted, organized, and 
uniformed active militia; that militia reservists, even though under 
State legislation they were subject to orders to attend annual en- 
campments and maneuvers, or were authorized to attend such en- 
campments and maneuvers at the option of the individual concerned, 
did not constitute part of the active militia within the meaning of the 
Federal legislation making provision for paying the militia for par- 
ticipation in maneuvers and camps of instruction; and that, therefore, 
the questions submitted should be answered in the negative. 

(58-650, J. A. G., Mar. 25, 1913.) 



NATIONAL CEMETERIES : Advertisements offering rewards for the arrest 
of persons defacing- monuments. 

The appropriation for the Gettysburg National Park contained in 
the act of August 24, 1912 (37 Stat., 442), covers the expense of 
" marking the lines of battle with tablets and guns, * * * ; pre- 
serving the features of the battle field and monuments thereon; 
* * * and all other expenses incidental to the foregoing." 

Upon the question of whether a reward of $100 could legally be 
ottered and paid for information leading to the arrest of persons who 
had defaced certain of the monuments on said battle field, Held, that 
the appropriation in question was broad enough to include provision 
for all reasonable and proper means for the protection and preserva- 
tion of the monuments on the battle field ; that the payment of a 
reward for information leading to the arrest of persons who had 
defaced the monuments was a reasonable and proper means of se- 
curing such protection; and that there was no objection to the ap- 
proval of a request to insert advertisements in the newspapers 
offering to pay a stipulated reward for such information. 

(80-015, J. A. G., Mar. 7, 1913.) 



PAY AND ALLOWANCES: Forage, use of, issued for authorized mounts in 
maintaining mounts not authorized. 

It was desired to know whether an officer having two authorized 
mounts and, in addition, one young undersized colt could use the 
forage issued for his authorized mounts in maintaining all three of 
his horses, the amount issued being amply sufficient for that pur- 
pose. 

Held, that forage issued for the maintenance of the authorized 
number of horses of an officer was not to be taken as an emolument 
out of which he might make a sa\dng or a profit, and that forage 
issued and not use in the maintenance of his authorized mounts 
should be accounted for as public property, and could not be used 
in maintaining horses not required to be kept by him in the public 
service. 

(72-350, J. A. G., Mar. 12, 1913.) 



182 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

PUBLIC PROPEIITY: Sale of personal property of the United States to an 
oflicer of the Navy. 

The Secretary of the Navy requested that an officer of the Navy 
on the retired list be permitted to purchase certain articles of 
clothing, equipment and material from the War Department. 

Held^ that the only authority for the sale by the Quartermaster 
Corps of the articles which the said officer desired was contained in 
section 1144, Revised Statutes, which authorized the procurement and 
sale by officers of the Subsistence Department of the Army to officers 
and enlisted men, of certain articles designated from time to time by 
the Inspector General, which authority was further recognized by 
sections 3618 and 3692, Revised Statutes; that said authority ex- 
tended only to the sale of said articles to officers and enlisted men 
of the Army and did not embrace authority to make sales to others ; 
and that therefore there was no legal authority for granting the 
request of the Secretary of the Navy. 

(80-135, J. A. G., M'ar. 19, 1913.) 



RIVERS AND HARBORS: Permission to build wharf and trestle approach 
thereto in Alaska. 

A certain company was given permission to build a wharf and 
trestle approach thereto on Controller Bay, Alaska, upon condition 
that the permission should be inoperative if not availed of by De- 
cember 31, 1910. The time limit was subsequently extended to 
December 31, 1912, but the settlement of the status of certain coal 
lands which were to be served by the railway of which the wharf and 
trestle were to be the terminal, was delayed, which likewise delayed 
the work upon the wharf and trestle, and a further extension was 
therefore desired. The previous extension was granted under section 
10 of the river and harbor act of March 3, 1899 (30 Stat., 1151). 
The act of May 14, 1898 (30 Stat., 409), for "extending the home- 
stead laws and providing for right of way for railroads in the Dis- 
trict of Alaska," provides that — 

" When such railway shall connect with any navigable stream or 
tide water such company shall have power to construct and maintain 
necessary piers and wharves for connection with water transporta- 
tion, subject to the supervision of the Secretary of the Treasury." 

Held^ that notwithstanding the provisions of the latter act, the 
Secretary of War still had jurisdiction, under section 10 of the river 
and harbor act of March 3, 1899, over the erection of wharves in 
Alaska so far as respects their interference with navigation, although 
the Secretary of the Treasury might, under said act of May 14, 1898,- 
have supervision over the matter in other respects. 

(62-352, J. A. G., Mar. 6, 1913.) 



TRANSPORTATION: Furnishing- accommodations on Army transports to 
families of officers and others entitled to transportation thereon. 

The act of March 2, 1907 (34 Stat., 1170), reads in part as follows: 

" When, in the opinion of the Secretary of War, accommodations 

are avaihible, transportation may be provided for the officers, en- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 183 

listed men, employees, and supplies of the Navy, the Marine .Corps, 
* * * [and] officers of the War Department * * *, while 
traveling on official business, and v^ithout expense to the United 
States, for the families of those persons herein authorized to be 
transported * * *." 

The Secretary of the Navy requested transportation on a United 
States Army transport for the father-in-law, mother-in-law, and 
sister-in-law of a chief electrician in the Navy from San Francisco, 
Cal., to Honolulu, Hawaii. It appeared that the wife of said chief 
electrician had died, and that he and his two minor children had 
made their permanent home with said relatives. 

Held^ that while the law did not specify who should constitute the 
family of an officer or enlisted man who might be furnished trans- 
portation on an Army transport, or how closely related to the officer 
or enlisted man they must be in order to constitute such family, the 
persons for whom it was proposed to furnish transportation having 
been attached in their family relations to the chief electrician might 
be considered as members of his family, and that transportation on 
an Army transport might be furnished them, if they were removing 
to the station of the chief electrician and to a home such as they 
had occupied with him before making the change, and were not 
making the trip merely as a visit. 

(94-110, J. A. G., Mar. 11, 1913.) 

The question having been submitted as to whether, under the act 
of March 2, 1907 (34 Stat, 1170), a member of an officer's family 
who would be allowed to accompany him when traveling on official 
business would be permitted to join him by a later transport than 
the one upon which he proceeded to his station, Ae?(^, that, consider- 
ing the fact that the order under which an officer changes his station 
often required him to leave on such short notice as not to permit 
him to take his family with him, a regular member of such officer's 
family who would have been allowed under the provisions of said 
act to accompany him might be provided, at a later date, with trans- 
portation on an Army transport for the purpose of joining the officer 
at his new station. 

(94-110, J. A. G., Mar. 14, 1913.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the OfRce of the Judge Advocate General.) 

CONTRACTS: Time of completion; delay in approving'. 

A contract dated June 29, 1911, was entered into for the installa- 
tion of certain electrical apparatus at an Army post, which provided 
that the work in said contract — 

"shall commence on or before the 30th day of June, 1911, and shall 
be carried on with reasonable dispatch and be completed on or before 
the 13th day of November, 1911." 

It was further provided that such contract was made " subject to 
the approval of the Quartermaster General, U. S. Army," but it was 
not actually approved by that officer until September 21, 1911. By 



184 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

supplemental agreement the time limit for the completion of the con- 
tract was extended to December 13, 1911, with the proviso that any 
excess in the cost of inspection, or other additional expenses or dam- 
ages to the United States over what would have been incurred had 
the work been completed by the date originally fixed for its comple- 
tion, should be charged to the contractor. The work was actually 
completed December 13, 1911, and final payment made. The auditor 
disallowed in the accounts of the disbui-sing officer making the pay- 
ment an amount equal to the saving in operation of the new plant 
over the old from November 13 to December 13, 1911, upon the 
theory that the contractor was obligated to complete the work by the 
former date, and that his failure to do so resulted in the damage 
stated. 

Held, that the contract did not become binding until September 21, 
1911, when it was approved by the Quartermaster General, and that 
the contractor was not therefore bound to complete the work by the 
date stated in the contract, but only to complete the same within a 
reasonable time after such approval. Held, further, that the sup- 
plemental contract operated to fix the date by which" the work should 
be completed, which date took the place of the reasonable time for 
completion to which the contractor would otherwise have been en- 
titled, and that the contractor having completed the work within the 
time thus fixed was not in default and was not liable for damages 
for not completing the work by the time originally fixed in the con- 
tract. 

(Comp. of the Treas., Mar. 26, 1913.) 



MILITIA: Pay, transportation, and subsistence of, while attending joint 
encampments and maneuvers with the Regular Army. 

Section 15 of the act of January 21, 1903 (32 Stat., 777), as 
amended by the act of April 21, 1910 (36 Stat., 329), provides that 

" The Secretary of War is authorized to provide for participation 
by any part of the Organized Militia of any State, Territory, or the 
District of Columbia, on the request of the governor of a State or 
Territory, or the commanding-general of the militia of the District 
of Columbia, in the encampments, maneuvers, and field instruction of 
any part of the Regular Army, at or near any military post or camp 
or lake or sea-coast defenses of the United States. In such case the 
Organized Militia so participating shall receive the same pay, sub- 
sistence, and transportation as is provided by law for the officers 
and men of the Regular Army, * * *." 

Said section further provides for such payment to be made out of 
the annual appropriation authorized by section 1661, Revised Stat- 
utes, as amended. The regulations of the Organized Militia pub- 
lished by authority of the Secretary of War provide that in order 
that members of a militia organization attending a joint encampment 
or maneuver may receive Federal pay, 65 per cent of the minimum 
strength of the organization must be present, but that transfers of 
members may be made from one organization to another in orclei' to 
bring one or both of such organizations within such standard. Said 
reguhitions further provide that in order to participate in Federal 
pay the members of the Organized Militia attending such encamp- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 185 

nient or maneuver must have been enlisted for at least three months 
prior thereto, or have had an equivalent service in the Army, in the 
Marine Corps, or in the Orii:anized Militia. No provision was made 
in the regulations for depriving members of the Organized Militia 
from receiving transportation and subsistence in connection with said 
encampments or maneuvers in case they did not come within the 
requirements for the receipt of Federal pay. 

A disallowance had been made in the accounts of a disbursing 
officer on account of overpayment for subsistence for militia attend- 
ing the joint encampment at Fort Rilej'^, Kans., on the ground that 
by actual count, as shown by the Federal pay rolls, the cost of the 
number of rations for the men participating in said encampment esti- 
mated at 25 cents per ration aggregated less than the amount paid 
for such subsistence. This disallowance had been affirmed by the 
Comptroller by certificate of difference only, and a reconsideration 
Avas asked for by the Secretary of War. 

Held., that under the circumstances payment for transportation 
and subsistence of men belonging to the Organized Militia attending 
joint encampments or maneuvers with the Regular Army under au- 
thority of the Secretary of War might be made, although such men 
might not come within the requirements which would entitle them to 
participate in Federal pay, and resort to other evidence than the 
pay rolls might be had in order to ascertain wiio were entitled to 
Buch transportation and subsistence. The case was therefore re- 
opened in order to allow the disbursing officer to submit evidence 
showing the number of men for whom transportation and subsistence 
were paid and who participated in the joint encampment. 

(Comp. of the Treas., Feb. 19, 1913.) 



PAY ALLOWANCE: Forage allowance to military attaches not owning 
their own mounts. 

Section 1272 of the Revised Statutes provides that — 

" Forage shall be allowed to officers only for horses authorized by 
law, and actually kept by them in service when on duty and at the 
place where they are on duty." 

Section 8, of the act of June 18, 1878 (20 Stat, 150), provides 
that— 

" Forage in kind may be furnished to the officers of the Army by 
the Quartermaster's Department, only for horses owned and actually 
kept by such officers in the performance of their official military 
duties when on duty with troops in the field or at such military posts 
west of the Mississippi River, as may be from time to time designated 
by the Secretary of War, and not otherwise, as follows: " 

Then follows a statement of officers of different grades with the 
number of horses authorized for each. 

The act of February 24, 1881 (21 Stat., 347), provides that— 

" There shall be no discrimination in the issue of forage against- 
officers serving east of the Mississippi River, provided they are re- 
quired by law^ to be mounted, and actually keep and own their ani- 
mals." 

Vouchers for the purchase of the authorized allowance of forage 
for horses kept by a military attache serving abroad were disallowed 



186 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

by the Auditor for the War Department on the ground that the 
horses for which the forage had been purchased were not owned by 
the officer, but only hired for his temporary use. 

Ileld^ on appeal from the Auditor's decision, that the acts of June 
18, 1878, and February 24, 1881, did not repeal section 1272, Revised 
Statutes, but that they merely imposed an additional condition upon 
officers of the Army serving in this country, requiring that they 
should not only keep but should actually own their horses used in the 
performance of their military duties ; and that the issue of forage for 
the authorized mounts of officers serving abroad as military attaches 
was governed by section 1272, Revised Statutes, which did not impose 
such additional condition. The action of the auditor was, therefore, 
overruled. The decisions in 16 Comp. Dec, 128, and 19 Id., 11, were 
overruled, in so far as they were in conflict with this decision. 

(19 Comp. Dec, 460, Jan. 23, 1913.) 



QUARTERS: Commutation ; occupying' a bunk in public quarters of another 
officer while on temporary duty. 

An officer of the Army proceeded under orders to a station, not his 
regular station, for temporary duty^ and while so engaged occupied, 
by courtesy, a bunk in the public quarters of another officer. At the 
time of this assignment to temporary duty the officer was entitled to 
and was receiving commutation of quarters at his permanent station. 
The assignment was not regarded as a change of station, and the 
officer was not permitted to have his household effects transported to 
the place of temporary duty. He did not apply for quarters at the 
temporary station, nor were any such quarters assigned to him there. 

Ileld^ that an officer on temporary duty who did not voluntarily 
relinquish his right to commutation of quarters at his permanent sta- 
tion, was not deprived thereof by the mere fact that he occupied a 
bunk, or even a room, in the public quarters of another officer at the 
temporary station through the courtesy or hospitality of said officer. 
Commutation of quarters was, therefore, allowed. 

(Comp. of the Treas., Mar. 24, 1913.) 



TRANSPOHTATIOIT: Commodity rates on household g-oods shipped to 
Pacific coast points. 

On request of the Secretary of War for a decision as to the appli- 
cation of commodity rates on household goods shipped to Pacific 
coast points per Transcontinental Westbound Tariff, 1-M— 

Advised, that as said tariff had been suspended, no decision thereon 
was in order until the same should be recognized as an effective 
tariff', and that the tariff now in force governing shipments of the 
character mentioned appears to be that published in Transconti- 
nental Westbound Tariff, No. 12-D, which. became effective July 11, 
1912. Said tariff' provided for a rate on " household goods, less car- 
loads, taking first-class rate under heading of ' household goods of 
emigrants' movables' in current classification," the value of each 
article, to be declared by the shipper, not to exceed a certain amount 
per one hundred pounds and to be so stated in the bill of lading. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 187 

Rule 16 of said tariff provided that the consignor of goods might 
elect to have a limited liability or a common carrier's liability service, 
and stipulated that ten per centum higher rate should be charged for 
the increased liability service. 

Advised fv/rther^ that the commodity rates provided for by said 
tariff were the lawful and only rates that might be used for the'trans- 
portation of the household goods indicated between the points for 
which said commodity rates were published, and that an ordinary 
shipment on a regular form of Government bill of lading, which pro- 
vided for shipment at owner's risk, would, therefore, take a lower 
rate, but if shipped at carrier's risk, the higher rate would apply. 

(Comp. of the Treas., Feb. 25, 1913.) 



OPINION OF THE ATTORNEY GENERAL. 

(Digest prepared in tlie Oflice of the Judge Advocate General.) 

TRANSPORTATION": Use of franking- privilege in transporting matter 
pertaining to oflicial business under the parcel-post law. 

The Secretary of the Interior asked to be advised whether his de- 
partment and its various bureaus and offices were entitled to the 
benefit of the parcel-post law, and whether they had a right to send 
by parcel post fourth-class matter not exceeding 11 pounds in weight 
under penalty envelopes and labels. 

The pertinent provisions of the act of August 24, 1912, establishing 
the parcel-post system are as follows : 

" Sec. 8. That hereafter fourth-class mail matter shall embrace all 
other matter, including farm and factory products, not now embraced 
by law in either the first, second, or third class, not exceeding eleven 
pounds in weight, nor greater in size than seventy-two inches in 
length and girth combined, nor in form or kind likely to injure the 
person of any postal employee or damage the mail equipment or other 
mail matter and not of a character perishable within a period rea- 
sonably required for transportation and delivery * * *." 

" That the rate of postage on fourth-class matter weighing not 
more than four ounces shall be one cent for each ounce or fraction of 
an ounce ; and on such matter in excess of four ounces in weight the 
rate shall be by the pound, as hereinafter provided, the postage in 
all cases to be prepaid bv distinctive postage stamps affixed. (37 
Stat., 557.)" 

Prior to the enactment of the statute creating the penalty privilege 
the following sections of the Revised Statutes were in force : 

" Sec. 3896. Postage on all mail matter must be prepaid by stamps 
at the time of mailing unless herein otherwise provided for. 

" Sec. 3897. All mail matter of the third-class must be prepaid in 
full in postage stamps at the office of mailing." 

The departments were expressly required to purchase said stamps 
for official use. _ (Sec. 3915, R. S., as amended Feb. 27, 1877, 19 Stat., 
250.) At this time the third class of mail matter included merchan- 
dise as well as miscellaneous printed matter. 

Section 17 of the act of March 3, 1879 (20 Stat., 359), defined mail 
matter of the third class to embrace " books, transient newspapers, and 



188 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

periodicals, circulars, and other matter wholly in print * * *," 
on which postage was required to be prepaid. 

Section 20 of the same act (id., 360), provided: 

" That mailable matter of the fourth class shall embrace all matter 
not embraced in the first, second, or third class, * * *," and 
limited the weight to not exceeding four pounds for each package 
except in case of single books weighing in excess of that amount. 

The penalty privilege for official business w^as brought into being 
by the act of March 3, 1877 (19 Stat., 335), section 5 of which pro- 
vided in part as f ollow^s : 

" That it shall be lawful to transmit through the mail, free of post- 
age, any letters, packages, or other matters relating exclusively to the 
business of the Government of the United States," complying with 
certain other requirements. Said act was subsequently amended, the 
last amendment being that of June 26, 1906 (34 Stat., 467). 

II eld ^ that there were two sets of enactments, dealing, respectively, 
■with the prepayment of postage and with the penalty privilege, 
which were adopted and subsequently amended without express ref- 
erence to each other; that section 5 of the act of March 3, 1877, re- 
lating to the penalty privilege indicated no intention on the part of 
Congress to restrict said privilege to classes of mail matter existing 
at the time of its enactment and was broad enough to cover any class 
thereafter established or any change in the weight limit of an ex- 
isting class; and that the legislation relating to such penalty privi- 
lege extended to the use of the parcel-post system established by said 
act of August 24, 1912. The questions asked were, therefore, an- 
swered in the affirmative. 

(Op. Atty. Gen., Feb. 28, 1913.) 



BULLETIN 17. 

Bulletin 1 WAR DEPARTMENT, 

No. 17. j Washington, Matj 6, 1913. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of April, 1913, and of certain decisions 
of the Comptroller of the Treasury, opinions of the Attorney Gen- 
eral, and decisions of the courts, is published for the information of 
the service in general. 

[2034028, A. G. O.] 

By order of the Secretary of War : 

LEONARD WOOD, 

Major General^ Chief of Staff. 
Official : 
GEO. ANDREWS, 

The Adjutant General. 



OPINIONS or THE JUDGE ADVOCATE GENERAL. 

ABSENCE: Leave of, to clerks and employees in the executive departments. 

Section 7 of the act of March 15, 1898 (30 Stat., 316), requires that 
the heads of the several executive departments shall exact of all 
clerks and employees in their respective departments not less than 
seven hours of labor each day, except on Sundays and public holi- 
days, and further provides as follows : 

"The head of any department may grant thirty days' annual leave 
with pay in any one year to each clerk or employee: Arul provided 
further^ That where some member of the immediate family of a clerk 
or employee is afflicted with a contagious disease and requires the 
care and attendance of such employee, or where his or her presence in 
the department would jeopardize the health of fellow clerks, and in 
exceptional and meritorious cases, where a clerk or employee is per- 
sonally ill, and where to limit the annual leave to thirty days in any 
one calendar year would work peculiar hardship, it may be extended, 
in the discretion of the head of the department, with pay, not exceed- 
ing thirty days in any one case or in any one calendar year." 

Certain employees of the office of the Chief of the Quartermaster 
Corps at Washington, D. C, had been absent fi-om duty on account 
of illness due to vaccination against smallpox. 

Held^ that the law permits the granting of thirty days' leave with 
pay in each calendar year, which is to be exclusive of Sundays and 
legal holidays, but that said period may be extended not to exceed 
thirty days on account of personal illness or in other exceptional and 

189 



190 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

meritorious cases mentioned in the act : held further^ that the absence 
in these cases should be charged against the extension of leave on ac- 
count of sickness, if the cases were found to be meritorious, notwith- 
standing that protection by vaccination might have been required by 
the sanitary regulations of the department. 
(2-151.1, J. A. G., Apr. 3, 1913.) 



ABSENCE: Leave of, to a pay clerk at the United States Military- 
Academy. 

Section 1330, Revised Statutes, provides: 

" Leave of absence may be granted by the superintendent, under 
regulations prescribed by the Secretary of War, to the professors, 
assistant professors, instructors, and other officers of the academy 
for the entire period of the suspension of the ordinary academic 
studies without deduction from pay or allowances." 

A pay clerk of the Quartermaster Corps was on duty at the Mili- 
tary Academy, and the question arose as to whether he was entitled 
under said section to leave of absence without deduction of pay or 
allowances during the period of suspension of ordinary studies at the 
academy, although his usual duties continued notwithstanding such 
suspension. 

Held^ that the expression " other officers " in section 1330, Revised 
Statutes, was intended to include only officers of the academy of the 
class previously described, to wit, professors, assistant professors, 
and instructors; that the pay clerk, although an officer within the 
meaning of the laws granting leaves of absence with pay to officers 
of the Army (18 Comp. Dec, 564), was not an officer of this class, 
and was not entitled to the leave of absence provided in said section ; 
but that the question of his leave was governed by the laws relating 
to leaves of absence to commissioned officers of the Army generally. 

(2-225, J. A. G., Apr. 14, 1913.) 



APPROPRIATIONS: Pasring for personal services from lump-sum appro- 
pria,tions; construction of amendment of statute. 

Section 7 of the general deficiency act of August 26, 1912 (37 
Stat., 626), provides as follows: 

" No part of any money contained herein or hereafter appropriated 
in lump sum shall be available for the payment of personal services 
at a rate of compensation in excess of that paid for the same or simi- 
lar services during the fiscal year 1912." 

Section 4 of the legislative, executive, and judicial appropriation 
act of March 4, 1913 (Public, No. 427, p. 58), amended said section 7 
so as to make the above provision read as quoted except to substi- 
tute the words " during the preceding fiscal year " for the words 
"during the fiscal year 1912," where the latter appeared in said pro- 
vision. 

Certain civilian inspectors in the subsistence department were 
paid for personal services from the lump-sum appropriation con- 
tained in the Army appropriation act passed before the said general 
deficiency act, and which appropriation was not therefore subject 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 191 

to its restrictions. Their - employment was to be continued during 
the fiscal year commencing July 1, 1913, and they were to be paid 
from a similar appropriation contained in the Araiy appropriation 
act of March 2, 1913, which latter appropriation would come within 
the restrictions of the act of August 26, 1912, but the act containing 
such appropriation was passed before the act amending the one last 
mentioned. The compensation of said inspectors had been increased 
during the fiscal year 1913, and an opinion was desired as to whether 
this increase could be continued for the succeeding fiscal year or 
whether their compensation should be limited to the rates paid dur- 
ing the fiscal year 1912, as specified in the general deficiency act 
before amendment. 

Held^ that the appropriations referred to in the amendatory law 
were the same as those described in the law which it amended, and 
that the rates of compensation for personal services paid from lump- 
sum appropriations coming within the operation of said act were to 
be governed by the rates paid during the preceding fiscal year. 
Held further^ that the pay of these inspectors might be increased 
during the fiscal year 1913, as the appropriation from which they 
were then paid was not subject to the restrictions of the act of 
August 26, 1912, and that they might be paid such increased com- 
pensation during the succeeding fiscal year, as the appropriation for 
such vear would come within the operation of the law as amended. 

(5-0T5. J. A. G., Apr. 14, 1913.) 



CIVIL SERVICE: Removal of classified employees; superintendent of the 
Antietam. battle field. 

The superintendent of the Antietam battle field is provided for 
by the annual appropriation in the act of August 24, 1912 (37 Stat., 
440), of the sum of $1,500— 

" For pay of superintendent of Antietam battle field, said super- 
intendent to perform his duties under the direction of the Quarter- 
master's Department and to be selected and appointed by the Secre- 
tary of War, at his discretion, the person selected and appointed to 
this position to be an honorably discharged Union soldier." 

Opinion was desired as to whether or not this position came within 
the requirements of section 6 of the act of August 24, 1912 (37 Stat., 
555), which provides for written charges and hearings before dis- 
charge, and the record thereof, as to every " person in the classified 
civil service of the United States." 

The classified service is defined in Rule 2 of the Civil Service Rules 
as including — 

"All officers and employees in the executive civil service of the 
United States, heretofore or hereafter appointed or employed, in 
positions now existing or hereafter to be created, of whatever func- 
tion or designation, whether compensated by fixed salary or other- 
wise, except persons employed merely as laborers, and persons whose 
appointments are subject to confirmation by the Senate." 

Held^ that the position of superintendent of the Antietam battle 
field clearly came within this definition of the classified service, and 
that there was nothing in the appropriation to take it out of said 
service, although the provision that the superintendent should be se- 



192 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

lected and appointed by the Secretary of War " at his discretion " 
from honorably discharged Union soldiers brought it within the class 
excepted from examination under the rules. Held further^ that the 
requirements of the act of August 24, 1912, relative to the manner of 
removing persons in the classified service should be observed in this 
case. 

(16-210, J. A. G., Apr. 22, 1913.) 



CONTRACTS: Reiease of contractor from performance. 

The Government had a contract for furnishing it with electric 
power, which contract contained a provision for its renewal at the 
option of the United States from year to year for 10 years. When 
the time came for renewal the company which had taken over the 
original contract at first declined to sign the renewed contract and 
consented to do so only after instructions had been issued that in 
case it persisted in such refusal the surety on the bond of the origi- 
nal contractor would be requested to secure compliance. The reasons 
assigned for such refusal were that the rate at which electric current 
was then being furnished was below cost to the company, and that 
the furnishing of such current at said rate would be likely to bring 
it into conflict with the laws of the State prohibiting the charging 
of one person or corporation a greater or less rate for electric current 
than another. 

Held, that the Government having acquired valuable rights under 
the contract as executed, the department could not lawfully release 
the contracting company from its obligations, if such action would 
be prejudicial to the interests of the United States (9 Opin. Atty. 
Gen., 81) ; that the United States is not within the meaning of the 
words " any person, firm, or corporation," as used in the State statute 
against discrimination in charges for services of this character as 
between private parties; and that contracts with the United States 
are controlled by the laws of the United States applicable thereto 
and not by State legislation. Held^ therefore, that the statutes of the 
State upon the subject constituted no valid ground upon which relief 
could be granted in this case. United States v. Fox (94 U. S., 315, 
321) ; Oslorn v. United States Bank (9 Wheat., 738, 867) ; 15 Comp. 
Dec, 648. 

(76-610, J. A. G., Apr. 3, 1913.) 



CONTRACTS: Waiver of defects in goods to be delivered, and acceptance 
upon condition. 

A contract provided for the delivery of oats at an Army post, the 
same to be " as inspected by the Omaha Grain Exchange in carload 
lots." The circular to bidders, attached to the contract and made 
a part thereof, provided that said oats should be " dry to the extent 
of containing not to exceed 12 per cent of moisture." It did not ap- 
pear that the rules of the Omaha Grain Exchange provided for a 
moisture test. Oats were tendered for delivery containing moisture 
in excess of the requirement of the contract. 

Held^ that under the terms of the contract the oats tendered were 
subject to rejection, but that it was competent for the Government to 



DIGEST or OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 193 

waive the defect and accept the oats either absohitely or upon condi- 
tion ; held further^ upon consideration of the evidence, that the oats 
were accepted upon the condition that there should be a deduction 
made from the contract price on account of the excess of moisture, 
and that settlement should be made accordingly. 
(76-640, J. A. G., Apr. 15, 1913.) 



COUBTS-MAIlTIAIi: Expenses of taking' depositions for; appropriation 

chargeable. 

The depositions of witnesses residing in Canada were desired for 
use in court-martial proceedings against two enlisted men, and it was 
necessary in order to procure the same that the United States consul, 
Avho was to take the depositions should incur some expenses in railway 
fares and hotel bills in going to and returning from the place of 
residence of the witnesses, as it would be more expensive to sununon 
the witnesses to the place where the consul resided. The Secretary 
of State indicated his willingness to direct the consul to take the 
depositions if the War Department would bear the said expenses. 

Held, that the expenses of the consul, like the fee of a notary pub- 
lic, were necessary for taking the depositions and were proper 
charges against the appropriation for expenses of courts-martial, 
courts of inquiry, etc., contained in the Army appropriation act of 
August 24, 1912 (37 Stat., 575). 

(30-477.4, J. A. G., Apr. 14, 1913.) 



DAMAGES: Unliquidated; not arising out of contract. 

A section of a concrete walk lieing constructed for the Government 
had been completed by the contractors in the afternoon and protected 
by a low fence consisting of stakes driven into the ground and a 
board nailed along the same. The walk had not been accepted by the 
Government officials. During the night the same was damaged by 
persons, presumably soldiers, walking over the same before it had 
hardened sufficiently, doing such damage as to necessitate! the replac- 
ing of the top coat. 

Held^ that the contractors were responsible, so far as the United 
States was concerned, for all damages of the kind mentioned until 
the walk had been turned over to the Government ; held further^ that 
the damages being unliquidated and not arising out of contract, the 
executive officers could not allow reimbursement for the same. 

(18-420, J. A. G., Apr. 7, 1913.) 

A Government steamer in backing out of her berth in a fog ran 
into and damaged a wharf belonging to a private corporation. Pub- 
lic requisitions were submitted for approval covering labor and mate- 
rial to be used in the repair of said wharf. 

Field, that the damages occasioned by the collision were unliqui- 
dated and arose out of tort and not out of contract, and that accord- 
ing to the well settled principle that executive officers have no author- 
ity to settle or allow claims for damages of this character, the said 
damage could not be repaired at Government expense and the requi- 
sitions should not be approved. 

(18-420, J. A. G., Apr. 16, 1913.) 

93668°— 17 13 



194 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL^ 

EIGHT-HOUR LAW : Domestic servants ; employees of the Office of Public 
Buildings and Grounds serving at the White House. 

Certain employees of the Office of Public Buildings and Grounds 
denominated simply as laborers, were called upon to render service 
for more than eight hours a day on occasions of public receptions and 
similar functions at the White House, involving duties of special 
trust and confidence. Ileld^ that these employees, though designated 
as laborers, were, while performing such duties, acting in the capac- 
ity of domestic servants, and did not come within the operation of 
the eight-hour law of August 1, 1892 (27 Stat., 340), limiting the 
hours of employment of laborers and mechanics to eight hours in 
any one day. 

(32-232, J. A. G., Mar. 10 and Apr. 12, 1913.) 



MEDICAL ATTENDANCE: Seamen on Government vessels engaged in 
inter-island traffic; treatment for chronic disorder; care-taking crew 
on transports out of commission. 

A civilian officer on a Government vessel employed in inter-island 
commerce in the Philippine Islands was admitted to hospital for an 
operation for hernia, described as "bilateral, congenital, and in no 
wise incidental to his service." He signed no shipping articles, but 
men employed in this service were liable at any time to be ordered to 
China or Japan, in which case they signed the usual shipping 
articles. 

Held^ that men employed upon vessels of the United States en- 
gaged in inter-island commerce come within the operation of the rule 
giving to seamen generally medical care and treatment when they 
become sick or are injured in the service of their vessels, and that the 
official in this case was entitled to the benefit of the rule, although he 
signed no shipping articles providing for such treatment; but, held 
further^ that he was not entitled to be treated and cured at the 
expense of the United States of a chronic disorder which existed at 
the time he entered the service, but that he might be treated for illness 
incurred in the service although such chronic disorder might have 
been the cause of such illness, and although a surgical operation 
might be the means indicated for restoring him to his otherwise 
normal condition. 

(94-120, J. A. G., Apr. 7, 1913.) 

Members of a care-taking crew of four Army transports out of 
commission and laid up at Newport News, Va., were by order re- 
quired to comply with the rules and regulations for the Army trans- 
port service, so far as applicable, as well as with those governing 
the duties of the cai-e-taking crew. They signed no shipping articles. 
Held^ in the case of one of said employees that he was not entitled to 
be treated at the expense of the United States for an injury received 
in the course of his employment as a mem])er of the care-taking crew, 
as he was not a seaman within the meaning of the rule giving to 
seamen medical treatment. 

(94-124.1, J. A. G., Apr. 16, 1913.) 



DIGEST OF OPIlSriONS OF THE JUDGE ADVOCATE GENEKAL. 195 

PUBLIC PROPERTY: Disposal of sewage on a military reservation, valu- 
able for irrigation thereon. 

The sewage of a military reservation was needed for use, after 
purification, in the cultivation of forage crops, gardens, etc., on the 
reservation. The military authorities recommended that the Gov- 
ernment construct its own purification plant, for which part of the 
funds were already available, and use the sewage for the benefit of 
the post and reservation. It was shown that the raw sewage was 
worth $6 per million gallons, and that the quantity would be from 
2,000,000 to 3,000,000 gallons per day. A private company had of- 
fered to construct a purification plant and to receive and purify 
the seAvage at its own expense and to save the Government harmless 
against the pollution of streams or other injuries incident to the 
use of the sewage, in return for the right to receive all the sewage 
from the reservation. Another company desired that the disposal 
of the sewage should be made the subject of public competition. 

Held., that this sewage was the property of the United States, and 
having a positive and considerable value both commercially and for 
use on the Government reservation, where it appeared to be much 
needed, the Secretary had, under the circumstances, no authority to 
dispose of the same to private parties in either of the methods pro- 
posed. 

(80-132, J. A. G., Apr. 16, 1913.) 



RETIRED OFFICER: Assignment of, to active duty as post-exchange 
officer. 

A retired Army officer expressed a desire to be assigned to active 
duty as post-exchange officer at a post where there were troops 
serving. The act of April 23, 1904 (33 Stat., 264) , provides that— 

" The Secretary of War may assign retired officers of the Army, 
with their consent, to active duty in recruiting, * * * ^^^ ^^ 
staff duties not involving service with troops." 

A post-exchange officer is selected and detailed by the post com- 
mander, and as such is under the command and performs duties under 
the supervision of the same authority. 

Held., that the duties of a post-exchange officer are not distinct from 
those of an officer serving with troops, but are habitually performed 
by an officer so serving, and that this officer might not lawfully be 
assigned to the duty in question. 

(88-600, J. A. G., Apr. 8, 1913.) 



ROADS AND STREETS: Control of, on militai-y reservations; jurisdiction. 

A strip of land on a military reservation, over which jurisdiction 
had been ceded to the United States, had been occupied by an emer- 
gency levee. A public highway which had existed as far back as 
1846 had occupied for the greater part of its course across the reserva- 
tion land then occupied by the new levee. The civil authorities 
desired that a new road be located across the reservation as nearly as 
possible to the line of the old road, and opened to public travel. 



196 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

In another case it was desired to know what legal steps were 
proper to be taken in order to close certain avenues lying within the 
limits of a city and of a military reservation. There was no public 
need for these streets, but it was claimed that the city had certain 
property rights therein for which it might be entitled to compensa- 
tion in case the avenues were closed. 

Held., in the first case, that the cession to the United States of 
exclusive jurisdiction over a military reservation gave it full control 
over all public servitudes on the same, including the right to open 
and close public highways ; and that if it was to the interests of the 
United States the military authorities might decline to open up a 
new road in the place of the one that formerly existed across the 
reservation, but which had been occupied by the emergency levee. 

Held., in the second case, that the acquisition of the property for 
fortification purposes, together with the cession of exclusive jurisdic- 
tion by the State, might be regarded as authority for closing any 
public highway within the limits of the reservation if deemed neces- 
sary for the purposes for which the property was acquired, and that 
the streets in question might be closed by the military authorities 
if thought necessarv. 

(80-626. J. A. G.', Apr. 1 and 12, 1913.) 



SUBSISTENCE: Commutation of rations; reimbursement for expenditure in 
excess of commutation allowance. 

Two enlisted men while traveling as a detachment by train were 
compelled to purchase subsistence on the dining car, and expended 
for this purpose a sum in excess of $1.50 per day each, being the 
commutation allowance to each of two men traveling as a detach- 
ment under orders, as specified in subparagraph 6 of paragraph 1245, 
Army Regulations, 1910. The Army appropriation act of August 
24, 1912 (37 Stat., 578). appropriates for the payment— 

" Of the regulation allowances of commutation in lieu of rations 
to * * * enlisted men * * * -^hen traveling on detached 
duty where it is impracticable to carry rations of any kind." 

Appropriations have been made in the same language in the Army 
appropriation acts for many years past. 

On application for reimbursement for the amount expended in ex- 
cess of the commutation allowance, Ji^ld^ that the regulation allow- 
ance of commutation having been made the basis of the appropria- 
tion for commutation in lieu of rations, said allowance as it existed 
at the time the expense was incurred could not be exceeded, and 
that the amounts paid in excess of such allowance could not be re- 
imbursed. 

(72-432. J. A. G., Apr. 17, 1913.) 

Beld further^ that the appropriation for the payment of the regu- 
lation allowances of commutation in lieu of rations does not amount 
to a legislative adoption of the amounts prescribed by the then ex- 
isting regidations, so as to limit the expenditure which can be made 
under the appropriation, but that said appropriation is available_ for 
the payment of said alloAvances whatever they may be at the time. 
The appropriation presupposes that the regulations are operative 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 197 

as such and subject to change, and is available for any change in the 
allowance made necessary by a change in the regulation. 
{Idem., Apr. 23, 1913.') 



TBANSPORTATION : Use of the parcel-post system; insuring transmission 
of public property. 

Section 8 of the act of August 24, 1912 (37 Stat, 558), establishing 
the parcel-post system, provides among other things that — 

" The Postmaster General shall make provision by regulation for 
the indemnification of shippers, for shipment injured or lost, by in- 
surance or otherwise, and, when desired, for the collection on delivery 
of the postage and price of the articles shipped, fixing such charges 
as may be necessary to pay the cost of such additional services." 

Kegulations have accordingly been issued by the Post Office De- 
partment, providing for giving receipts for insured packages trans- 
mitted through the parcel-post system and fixing charges therefor 
which are to be paid in parcel-post stamps attached to the packages. 
Said regulations make provision for indemnification in case of loss, 
but no additional facilities or safeguards are provided for the trans- 
portation of insured packages, and they are treated otherwise as 
ordinary mail matter. Receipts, however, are exacted on delivery. 

Held^ that as it is not the policy of the Government to insure its 
property, and as the sending of packages through the parcel-post 
system and insuring them according to the regulations prescribed, 
would amount simply to such insurance w^ithout obtaining any addi- 
tional security against loss than a money indemnity, the use of ap- 
propriations of the War Department for the purpose of so insuring 
such packages containing government property would not be au- 
thorized. 

(94-070, J. A. G., Apr. 23, 1913.) 



TRANSPORTATION: Shipments of Government supplies on vessels not of 
American register. 

The act of April 28, 1904 (33 Stat., 518), directs that all supplies 
for the Army and Navy shall be shipped in vessels of American 
register " unless the President shall find that the rates of freight 
charged by said vessels are excessive and unreasonable," in which 
case contracts shall be made under the law as it then existed, with 
the proviso that no greater charge should be made by such vessels 
for transportation of articles for the United States for the Army and 
Navy than are made by such vessels for transportation of like goods 
for private parties. 

An American steamer was scheduled to sail from San Francisco 
to Manila, P. I., on April 12, and the next sailing of an American 
vessel from said port to Manila would be June 21. Between said 
dates it was contemplated that there w^ould be large consignments 
of public stores arriving in San Francisco for shipment to Manila, 
and it was doubtful whether the transports scheduled for sailing 
May 5 and June 5 could accommodate all of such property requiring 
transshipment to Manila during this period. No American vessels 
were available. 



198 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Eeld^ that under the circumstances, and there being no American 
vessels available, the excess of shipments which could not be sent 
by the Government transports sailing May 5 and June 5 might 
properly be sent by vessels of foreign register, in order to avoid 
holding the shipments at San Francisco for so long a period. 
C-20928, J. A. G., Jan. 19, 1907. 

(94-080, J. A. G., Apr. 18, 1913.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in tlie Office of the Judge Advocate General.) 

ACCOUITTIWG: Loss of original vouchers and abstracts and the substitution 
of copies. 

The accounts of an Army paymaster for the month of May, 1912, 
were lost while in transit on the S. S. Brutus by the sinking of that 
vessel on the coast of Mindanao, and the officer transmitted his 
retained and memorandum vouchers certified by him to be true 
copies of the originals. The memorandum vouchers did not con- 
tain the certificate of the payees nor the receipt of the payees where 
payment had been made in cash. The expenditures consisted almost 
entirely of payments to officers and enlisted men of the Army upon 
pay rolls which were paid in cash, and duplicate receipts were there- 
fore not supplied. Paragraph 7 of Treasury Department Circular 
No. 52 of July 29, 1907, provides : 

" 7. Unless required by law, vouchers shall not be taken in exact 
duplicate, triplicate, etc. Only one copy of a voucher, the original, 
shall contain signed certifications, approvals, and receipts. As many 
copies, in memorandum form, duly authenticated if desired, may be 
taken as administrative requirements demand." 

Field, that while it would require a great deal of work to make the 
audit in said case with the evidence at hand, an audit might be 
made with sufficient accuracy to determine whether the officer was 
entitled to the credit claimed by him, and credit should be allowed 
according to the best evidence obtainable. 

(Comp. of the Treas., Apr. 14, 1913.) 



APPROPItlATIONS: Expenses of an officer of the Army attending the 
meetings of a prison association; appropriation chargeable. 

An officer of the Army stationed at Washington, D. C, was desig- 
nated by the Secretary of War to attend the meeting of the American 
Prison Association to be held at Baltimore, Md., during the month 
of November, 1912, for the purpose of obtaining information relative 
to prisons and prisonere to be used in connection with the Army. 
Upon completion of this duty he was to return to his proper station. 

Held, that as the officer's journey to and from Baltimore was on 
Army business, and was made in obedience to the orders of the Sec- 
retary of War, his right to reimbursement for expenses must be 
determined by the mileage laws for the Army, under which he was 
entitled, for the distance traveled, to 7 cents per mile and no more, 
payable from the mileage appropriation. 

(Comp. of the Treas., Apr. 25, 1913.) 



DIGEST OF OPINIONS -OF THE JUDGE ADVOCATE GENERAL. 199 

ASSOCIATIONS: Membership dues in International Association of Chiefs 
of Police. 

The Auditor for the War Department disallowed an item of $5 in 
the accounts' of a disbursing officer , the same being for " annual dues 
for one year for membership of the Adjutant General in the Inter- 
national Association of Chiefs of Police," on the ground that pay- 
ment of the same was prohibited by section 8 of the act of June 26, 
1912 (37 Stat, 184), which provides: 

" No money appropriated by this or any other Act shall be ex- 
pended for membership fees or dues of any officer or employee of 
the United States or of the District of Columbia in any society or 
association or for expenses of attendance of any person at any meet- 
ing or convention of members of any society or association, unless 
such fees, dues, or expenses are authorized to be paid by specific 
appropriations for such purposes or are provided for in express 
terms in some general appropriation." 

The voucher covering the disbursement in question was paid from 
the appropriation for " Incidental expenses. Quartermaster's Depart- 
ment, 1913," which does not specifically authorize the payment of 
membership fees or dues of any officer or employee of the United 
States in any society or association. 

Held^ that in view of the specific prohibition contained in said 
act of June 26, 1912, the payment of a membership fee in the Inter- 
national Association of Chiefs of Police was not authorized and that 
the disallowance by the auditor should be affirmed. 

(Comp. of the Treas., Apr. 9, 1913.) 



AVIATION SERVICE: Increase of pay and allowances for. 

The Army appropriation act of March 2, 1913 (Public, No. 401, 
p. 3), provides that — 

" The pay and allowances that are now or may hereafter be fixed 
by law for officers of the Regular Army shall be increased' thirty-five 
per centum for such officers as are now or may hereafter be detailed 
by the Secretary of War on aviation duty: Provided^ That this in- 
crease of pay and allowances shall be given to such officers only as are 
actual fliers of heavier than air crafts, and while so detailed: Pro- 
vided further^ That not more than thirty officers shall be detailed to 
the aviation service." 

On application for opinion by the Secretary of War, held^ that the 
increase of pay provided for in said act applies to the regular pay 
of an officer of the Army detailed for duty under said provision, 
including longevity pay, foreign-service pay, additional pay for 
providing mounts, or any other additional pay, and also commutation 
of quarters or any other allowance which the officer is entitled to 
receive in money while so detailed, including mileage for travel under 
orders; but that the law does not contemplate an increase in any 
allowance that the officer is entitled to receive in kind only, such as 
heat and light, medicines and medical attendance, qu'arters, forage, 
shelter for mounts, etc. 

(Comp. of the Treas., Apr. 8, 1913.) 



200 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CONTRACTS: Assignment of; payments under after assignment. 

A certain company entered into a contract with the Government 
to deliver, during the period from July 1 to December 31, 1912, such 
quantities of fresh potatoes as might be required at Fort Moultrie, 
S. C, at the rate of 2.35 cents per pound. On July 27, 1912, another 
company purchased outright the branch house of the contractor at 
Charleston, S. C, through which the contract had been supplied, in- 
cluding all of the business pertaining to said branch, and thereafter 
and until October 30, 1912, the assignee company conducted said 
business under a trade name different from that of the original con- 
tractor, and after the last-mentioned date conducted the business un- 
der its own name. The assignee continued to receive and fill orders 
as under the contract with the original contractor, either in the name 
adopted by it for the business or in its own name, and was paid for 
deliveries as the " successor " to the original contractor. On Decem- 
ber 31, 1912, the assignee in its own name, on request, delivered 
10,789 pounds of potatoes as under the contract, and the same were 
accepted and used. Payment was asked for the same as the successor 
of the original contractor. 

Section 3737, Revised Statutes, provides that — 

" No contract or order, or any interest therein, shall be trans- 
ferred by the party to whom such contract or order is given to any 
other party, and any such transfer shall cause the annulment of the 
contract or order ti'ansferred, so far as the United States are con- 
cerned. All rights of action, however, for any breach of such con- 
tract by the contracting parties, are reserved to the United States." 

Held, that the sale by the original contractor of its plant and busi- 
ness at Charleston, S. C, including its interest in existing contracts, 
did not operate to transfer to the assignee any of the rights or obli- 
gations under the contract in question, and that the bills for supplies 
furnished under the contract should be made out in the name of and 
payments made to the original contractor. 

(Comp..of the Treas., Apr. 16, 1913.) 



CONTRACTS: Deduction for delay in delivery; delay in presenting claim. 

By contract dated June 13, 1902, a contractor agreed to furnish 
and deliver on or before August 27, 1902, a certain number of cotton 
shirts, with a provision for an increase of 20 per cent in the number 
to be delivered, at the average rate of 1,000 shirts per day, with a 
deduction from the contract price at certain rates for deliveries under 
the contract after said last-mentioned date. The contract was not to 
become effective until approved by the Quartermaster General, which 
approval was not obtained until July 7, 1902. Deliveries were com- 
pleted under the contract, including delivery of the 20 per cent in- 
crease, on November 17, 1902, Had deliveries been commenced and 
made at the rate agreed upon, the contract, including the increase in 
amount, would have been completed September 9, 1902. Deduction? 
were made according to the terms of the contract in making pay- 
ment for belated deliveries, to which deductions the contractor sub- 
mitted at the time. Full and final settlement was made December 8, 
1902, at which time the contractor, without protest, certified the final 
voucher to be correct, and accepted payment. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 201 

By letter of February 16, 1903, a Member of Congress on behalf 
of the manufacturers claimed that the deductions were excessive, 
and the contractor asked that the contentions of the manufacturer 
be considered as his own, and treated as a claim for a refund of the 
deductions. On April 1, 1903, the Quartermaster General advised 
the Member of Congress that the claim could not be allowed. The 
matter then rested until the filing, about eight years later, of the 
present claim, which was disallowed by the Comptroller of the 
Treasury April 1, 1912. 

Held^ that as the contractor had accepted settlement with a full 
knowledge of all the facts now presented, consenting to the deduc- 
tion and certifying to the correctness thereof at the time when all 
the facts were fresh in his mind, no reason existed for granting a 
rehearing in the case. 

(Comp. of the Treas., Apr. 19, 1913.) 



CONTRACTS: Deliveries after time for completion; cost of inspection. 

A contract provided for the delivery of a certain number of hats 
within a given time, and provided further that if deliveries were 
not completed within the time specified deductions should be made 
of the cost of inspection thereafter. Upon consideration of the ques- 
tion as to whether deduction should be made for the whole of the 
inspector's time during the period of delay or only for the time 
actually employed in inspecting the hats delivered after the time for 
completion had expired, helcl^ that deduction should be made only for 
the time actually employed by the inspector in making the inspection 
of hats delivered after the time for the completion of the contract. 

(Comp. of the Treas., Apr. 22, 1913.) 



CONTRACTS: Time for completion; delay in approving-. 

A contract dated June 29, 1911, was entered into for the installa- 
tion of certain electrical apparatus at an Army post which provided 
that the work in said contract — 

" shall commence on or before the 30th day of June, 1911, and shall 
be carried on with reasonable dispatch and be completed on or before 
the 13th day of November, 1911." 

It was further provided that such contract was made " subject to 
the approval of the Quartermaster General, United States Army," 
but the same was not actually approved by that officer until Sep- 
tember 21, 1911. By supplemental agreement the time limit for the 
completion of the contract was extended to December 15, 1911, with 
the proviso that any excess in the cost of inspection, or other addi- 
tional expenses or damages to the United States, over what would 
have been incurred had the work been completed by the date origi- 
nally fixed for its completion, should be charged to the contractor. 
The work was actually completed December 13. 1911, and final pay- 
ment made. The auditor disallowed, in the accounts of the disburs- 
ing officer making the payment, an amount equal to the saving in 
operation of the new plant over the old from November 13 to Decem- 
ber 13, 1911, upon the theory that the contractor was obligated to 



202 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

complete the work by the former date, and that his failure to do so 
resulted in the damages stated. 

Ileld^ that the contract did not become binding until September 21, 
1911, when it was approved by the Quartermaster General, and that 
the contractor was not, therefore, bound to complete the work by the 
date stated in the contract, but only to complete the same within a 
reasonable time after such approval. Held further^ that the supple- 
mental contract operated to fix the date by which the work should be 
completed, which date took the place of the reasonable time for com- 
pletion to which the contractor would have otherwise been entitled, 
and that the contractor having completed the work within the time 
thus fixed, was not in default, and was not subject to the deductions 
provided for in the contract for failure to complete by the time 
specified. 

(Comp. of the Treas., Mar. 26, 1913.) 



PURCHASE OF SUPPLIES: Executive departments and establishments at 
Washington, D. C. ; General Supply Committee. 

The Chief of the Signal Corps, wdiose office is located at Washing- 
ton, D. C, was about to purchase certain screws according to a list 
presented, the price of the same as quoted to the Signal Corps by a 
private manufacturer being less than the price shown on the general 
supply schedule of the supply committee for the same or similar 
articles. It was not disputed but that the screws were articles of 
miscellaneous supplies within the meaning of the act of June 17, 1910 
(36 Stat., 531), providing for purchases of supplies for the execu- 
tive departments and establishments of the Government in Washing- 
ton through the medium of the General Supply Committee therein 
authorized. 

Held, that if screws of this character had been advertised and con- 
tracted for and scheduled by the Secretary of the Treasury as required 
by said act, all departments and establishments of the Government in 
Washington were required to purchase and use exclusively the screws 
so contracted for and scheduled, and that the Secretary of War 
might lawfully purchase screws thus contracted for from no other one 
than the contractor of the supply committee. 

(Comp. of the Treas., Apr. 22, 1913.) 



PURCHASE OF SUPPLIES: Payment of discounts on bills for gas. 

Bills were rendered for gas furnished to the United States subject 
to a discount of 20 cents per 1,000 feet if paid on or before the 10th of 
the month. In one case the check given in payment of the monthly 
bill showed t|iat it was indorsed at the bank before the expiration of 
the discount jieriod, and in another case the check was drawn on the 
last day on which discount would be allowed, but the indorsement in- 
dicated that it was paid after said date. Both bills were paid with- 
out deduction of the discount. The auditor disallowed the amount of 
the discounts, in the first case because payment was made before the 
expiration of tlie discount period, and in the second case because the 
officer was api^arently negligent in not paying the account in time to 
secure the discount. 



DIGEST OF OPIISriONS OF THE JUDGE ADVOCATE GENERAL. 203 

Held^ on appeal, that the first bill having been paid within the 
period when discount should have been allowed^ the overpayment of 
the amount of the discount was properly disallowed; and that the 
second bill not having been paid until after the right to the discount 
had lapsed, the company furnishing the gas became entitled to the 
full amount of the bill. The payment was, therefore, legally made, 
and the accounting officers were not justified in disallowing the 
amount of the discount. 

(Comp. of the Treas., Apr. 3, 1913.) 



QUABTEES: Commutation of, on day of relief from duty. 

Certain officers on duty at the Army War College at Washington, 
D. C, were by special orders relieved from duty to take effect July 1, 
1912, granted leaves of absence to take effect on being relieved from 
duty, and directed then to proceed to their proper stations. 

IleM^ that the allowance of commutation of quarters is analogous 
to allowance of pay, and that the officers in question were entitled to 
commutation for the day they were relieved from duty. 

(Comp. of the Treas., Apr. 16, 1913.) 



TRANSPORT ATION: Of the Anny; Hire of means of transportation for 
officers engaged upon map work; Appropriation chargeable. 

It was contemplated to order an officer of the Coast Artillery Corps 
to take station for fieldwork in the preparation of maps necessary in 
the military service in connection with which it would be necessary to 
perform local travel, both on land and water. A decision was desired 
from the Comptroller upon the following questions: 

{a) Whether, in the case of officers (not receiving pay and allow- 
ances as mounted officers) engaged in the performance of duties 
assigned to them, or required to do local travel such as indicated 
above, payment may be made from public funds for the hire of 
necessary and suitable means of local transportation; 

{b) Wli ether payment for such hire is authorized in the case of 
officers who receive pay and allowances as mounted officers when 
such local travel is required of them and the same can not properly 
be accomplished by the use. of saddle horses; and also 

{c) Whether payment is authorized for the hire of saddle horses, 
when necessary, for the use of mounted officers on such detached 
service where it would be an excess of expense to the Government for 
the transportation, care, and maintenance of the private mounts of 
those officers in order to have them available at place of duty. 

The foregoing questions were framed upon the supposition that 
mileage was not to be paid for the travel for which the transporta- 
tion was to be furnished. 

Held^ that under the provisions of the act of May 11, 1908 (35 
Stat., 108), it is the duty of the United States to furnish the neces- 
sary mounts and horse equipments to officers below the grade of 
major entitled to be mounted, and that where it would be impossible 
or impracticable to provide such mounts, and the exigencies of the 
service should require the officer to be mounted, horses might be 



204 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

hired for such purpose, and the appropriation for the transportation 
of the Army and its supplies could be used in payment for the hiring 
of the same. The decisions reported in 17 Comp. Dec, 384, and in 19 
idem, 65, were OA'erruled in so far as they were in conflict with said 
decision. 

Held further, that if an officer below the grade of major, required 
to be mounted, and who provides himself with suitable mounts, 
should be detailed away from his station to a duty requiring him to 
be mounted, and the War Department should, by reason of the exces- 
sive cost of transportation, refuse to transport his mounts to his new 
place of dut3^ a mount might be hired for his use, and payment for 
such hire could be made from the appropriation for the transporta- 
tion of the Armv and its supplies. 

(Comp. of the Treas., Apr. 22, 1913.) 

An officer of the Army engaged on military map work was author- 
ized to hire a motor cycle for his use, at not to exceed a certain rate 
per month, and to purchase the gasoline necessary therefor. 

Held, That the hire of said motor cycle and the cost of furnishing 
gasoline therefor, when used ^n the discharge of the officer's official 
duties, might be paid for from the appropriation for the transporta- 
tion of the Army and its supplies. 

(Comp. of the Treas.. Apr. 15, 1913.) 



TRANSPORTATION: Of the Army; Street car fares for a funeral escort 
furnished on request of a private organization. 

On request by the president of a private organization to the com- 
manding officer at Fort Howard, Md., for an escort for a deceased 
sergeant of the Army, retired, who was a member of said organiza- 
tion, he was informed that no provision was made for the trasporta- 
tion of such an escort; but the latter stated that he Avould pav the 
expense of transportation and take up the question of reimbursement 
later. Eight dollars were expended in car fares for the transporta- 
tion of said escort. The commanding officers of certain forts had 
been instructed to furnish funeral escorts without further authority, 
but this particular fort was not included among the number. 

On claim for reimbursement of the amount expended for car fares, 
held, that the correspondence indicated tjiat the military escort was 
sent from Fort Howard on the understanding that the expense at- 
tending its movement would be borne by the commander of the 
organization requesting it, and that reimbursement for such expend- 
iture was not authorized. 

(Comp. of the Treas., Apr. 21, 1913.) 



TRAVEI. ALLOWANCES: On dischag-e; transportation over a longer route 
at less expense than over a shorter one. 

The question was submitted by the Secretary of the Navy as to 
whether a marine, discharged from the service and not electing to 
receive mileage instead of transportation in kind and subsistence, 
might be transported to his place of enlistment over a longer route 
although at less expense than over a more expensive shorter one. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 205 

The Army appropriation act of August 24, 1912 (37 Stat., 576), 
provides that — 

" When an enlisted man is discharged from the service, except by 
Tvay of punishment for an offense, he shall be entitled to tranporta- 
tion in kind and subsistence from the place of his discharge to the 
place of his enlistment, * * * or, in lieu of such transportation 
and subsistence, he shall, if he so elects, receive two cents a mile, ex- 
cept for sea travel, from the place of his discharge to the place of his 
enlistment." 

By law enlisted men of the Marine Corps are entitled to the same 
pay as enlisted men of the Army. 

Held^ that if a soldier elects to receive mileage instead of trans- 
portation in kind and subsistence, the distance for which mileage is 
to be paid should be computed over the shortest usually traveled 
route ; but if he is to receive transportation in kind and subsistence, 
and the cost of furnishing the same over the official or shorter route 
is greater than over the longer one, it is the legal right and duty of 
the officer issuing the transportation to issue the same over the longer 
route. 

(Comp. of the Treas.. Apr. 11, 1913.) 



OPINIONS OF THE ATTORNEY GENERAL. 

(Digests prepared in tlie office of tlie Judge Advocate General.) 

CONTRACTS: Withdrawal of bids before acceptance. 

Certain bids for the purchase of copper scrap, located on the 
Isthmus of Panama, were to be opened and tabulated in Washington, 
and were then to be referred to the Isthmus for final decision. 

Held^ that a bidder on a Government contract can not withdraw 
his bid before a reasonable time is allowed the Government for ac- 
ceptance after the opening of the bids, and that a delay of seven 
days before notice of acceptance was not unreasonable as a matter 
of law. 

(30 Opin., 56.) 

EIGHT-HOUB LAW: Construction of public buildings. 

In the construction of public buildings, where the Government 
contracts for the furnishing of the materials and labor as well as for 
the erection of the building but the purchases of the materials are 
made directly by the contractor or subcontractor, 

Held,, that the purchases of such materials by the contractor or 
subcontractor are subject to the exceptions in section 2 of the eight- 
hour law of June 19, 1912 (37 Stat, 138), and are not subject to 
the restrictions of said act in regard to the hours of labor for labor- 
ers and mechanics engaged on government contracts. 

(30 Opin., 133.) 

PURCHASE OF SUPPLIES: For the executive departments and establish- 
ments in Washington; service outside of Washington. 

A large number of contracts had been made by the officers of the 
Quartermaster Corps for the purchase of supplies in Washington, 



206 DIGEST OF OPINEOISrS OF THE JUDGE ADVOCATE GENEKAL. 

D. C, for Army posts therein and in the vicinity, notwithstanding 
the fact that the same chisses of supplies were included in the schedule 
published b}'^ the General Supply Committee for the fiscal year 1913. 
It was understood that it had been the practice of the Treasury 
Department to recognize the validity of such contracts where it ap- 
peared that the interests of the Government would be promoted 
thereby. 

Section 4 of the act of June 17, 1910 (36 Stat., 631), directs that 
all supplies of fuel, ice, stationery, and other miscellaneous supplies 
for the executive departments and other Government establishments 
in Washington, when the public exigencies do not require the im- 
mediate delivery of the article, shall be advertised and contracted 
for by the Secretary of the Treasury instead of by the several de- 
partments or establishments, and that there shall be a general supply 
committee in lieu of the board provided for by section 3709, Revised 
Statutes, as amended, whose duty it shall be under the direction of 
the Secretary of the Treasury to make an annual schedule of re- 
quired miscellaneous supplies, and to standardize such supplies, etc. 

On request for opinion by the Secretary of the Treasury as to the 
scope of said act, held^ that although the practice of recognizing the 
validity of such contracts was not inconsistent with the statute, said 
contracts were not authorized by said section 4 of the act of June 17, 
1910, except in cases where the exceptions mentioned in the law 
applied. 

(Opin. of Solic, Apr. 1, 1913.) 



RETIRED OFFICERS: Employment of, as superintendents of Indian 
Schools. 

Section 3679, Revised Statutes, as amended by section 3 of the act 
of February 27, 1906 (34 Stat., 48), reads as follows: 

" No executive department or other Government establishment of 
the United States shall expend, in any one fiscal year, any sum in 
excess of appropriations made by Congress for that fiscal year, or 
involve the Government in any contract or other obligation for the 
future payment of money in excess of such appropriations, unless 
such contract or obligation is authorized by law. Nor shall any de- 
partment or any officer of the Government accept voluntary service 
for the Government or employ personal service in excess of that au- 
thorized by law, except in cases of sudden emergency involving the 
loss of human life or the destruction of property. * * *." 

Upon consideration of the question of whether or not a retired 
Army officer, receiving upward of $2,500 per annum, could be em- 
ployed as superintendent of an Indian school or agency without 
additional compensation and without contravening the provisions of 
said section as amended — 

Held, that a retired officer, even though receiving upward of 
$2,500 per annum, might be employed as superintendent of an Indian 
school or agency, where no additional compensation is allowed, with- 
out contravening the provisions of said section as amended. 

Held further, that the words " voluntary service," as employed in 
the above-mentioned act, were not intended to cover services rendered 
in an official capacity under regular apjwintment to an office other- 
wise permitted by law to be nonsalaried. 

(30 Opin., 51.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 207 

DECISIONS OF THE COURTS. 

( Digests 'prepared in the office of the Judge Advocate General.) 

CONTRACTS: Liquidated damages; time of completion. 

A contract was entered into to furnish all material and labor for 
the construction of a coal-storing plant to be completed within 12 
calendar months from the date of the contract, with a provision for 
the payment of liquidated damages for delaj^ beyond the period 
fixed. It contained a provisicm for additions of certain units to 
the plant at a specified unit price, it being contemplated at the time 
that Congress would appropriate more money, and that in such 
event the plant would be increased by the addition of such units. 
Congress made the appropriation, and additional units were ordered, 
amounting to much more than the original work. No provision was 
made for an extension of the time of completion on account of such 
additions. Delays were occasioned by the fault of the Government 
in commencing the work, but the same was carried to completion 
with reasonable diligence by the contractor. 

Held, that where a building owner delays the contractor, the for- 
mer can not enforce a time-limit stipulation for the completion of 
the work, but his conduct waives the same, giving the contractor a 
reasonable time in which to complete the work; that the delay of 
the Government in providing a site for the commencement of this 
work prevented the application of the provision for liquidated dam- 
ages; and that it was evident that the limitation was intended to 
apply only to the original work, and not to the extensions then un- 
known to the parties. Judgment was therefore rendered for the 
amount of the liquidated damages, which had been retained. 

{Smith V. United States, Ct. of Cls., No. 29849, Mar. 24, 1913.) 



ENLISTMENT: Of a minor without consent of his parent or guardian; 
habeas eorinis proceedings while held in confinement preparatory to 
delivery to the military authorities as a deserter. 

A minor who enlisted in the Army without the consent of his 
parent or guardian deserted, was arrested while in desertion, and 
was being held for delivery to the military authorities. While so 
held, a writ of habeas cotjjus was sued out by himself and his mother 
jointly, claiming his release on the ground of minority. 

Field, that a minor enlisting without the consent of his parents or 
guardian becomes a de jwre soldier, and on his desertion from the 
service and subsequent arrest, and while being held for delivery 
to the military authorities for such offense, he is not entitled to be 
released upon habeas corpus, either upon his own application or that 
of his parent. Held further, in this case, that the mother of the 
soldier, having loiown of his enlistment for some time and not hav- 
ing taken any steps to have him released from his enlistment, vir- 
tually ratified said enlistment, and her application for his discharge 
after he had deserted from the service and had been arrested for the 
offense, should for this reason be denied. 

(Ex parte Dunakin, 202 Fed. Rep., 290.) 



208 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 
INSURRECTION AND MARTIAI/ LAW. 
(Syllabi by the court.) 

1. Martal law; Declaration; Power of governor. 

The governor of the State of West Virginia has power to declare 
a state of war in any town, city, district, or county of the State, in 
the event of an invasion thereof by a hostile military force or an 
insurrection, rebellion, or riot therein, and, in such case, to place 
such town, city, district, or county under martial law, 

[Ed. note. — For other cases, see Insurrection, Cent. Dig., sec 5; 
Dec. Dig., sec. 5.*] 

2. state sovereignty; Constitutional guaranties; Habeas corpus. 

The constitutional guaranties of subordination of the military to 
the civil power, trial of citizens for offenses cognizable by the civil 
courts in such courts only, and maintenance of the writ of habeas 
corpus, are to be read and interpreted so as to harmonize with other 
provisions of the Constitution authorizing the maintenance of a 
military organization, and its use by the executive to repel invasion 
and suppress rebellion and insurrection, and the presumption against 
intent on the part of the people, in the formulation and adoption of 
the Constitution, to abolish a generally recognized incident of sov- 
ereignty, the power of self-preservation in the State by the use of its 
military power in cases of invasion, insurrection, and riot. 

[Ed. note. — For other cases, see Insurrection, Cent. Dig., sec. 5; 
Dec. Dig., sec. 5.*] 

3. Constitutional law; Declaration; Review by courts. 

It is within the exclusive province of the executive and legislative 
departments of the government to say whether a state of war exists, 
and neither their declaration thereof, nor executive acts under the 
same, are reviewable by the courts, while the military occupation 
continues. 

[Ed. note. — For other cases, see Constitutional Law, Cent. Dig., 
sees. 125-127 ; Dec. Dig., sec. 68.*] 

4. Military commission; Trial of offense. 

The authorized application of martial law to territory in a state 
of war includes the power to appoint a military commission for the 
trial and punishment of offenses within such territory. 

[Ed. note. — For other cases, see Insurrection. Cent. Dig., sec. 5; 
Dec. Dig., sec. 5.*] 

5. Martial law; Power of courts. 

Martial law may be instituted, in case of invasion, insurrection, or 
riot, in a magisterial district of a county, and offenders therein pun- 
ished by the military commission, nortwithstanding the civil courts 
are open and sitting in other portions of the county. 

[Ed. note. — For other cases, see Insurrection, Cent. Dig., sec. 5 ; 
Dec. Dig., sec. 5.*] 

6. Martial law; Military commission; Offenses. 

Acts committed in a short interim between two military occupa- 
tions of a territory for the suppression of insurrectionary and riotous 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 209 

uprisings, and such in their general nature as those characterizing 
the uprising, are punishable by the military commission within the 
territory and period of the military occupation. 

[Ed. note. — For other cases, see Insurrection, Cent. Dig., sec. 5; 
Dec. Dig., sec. 5.*] 

Robinson, J., dissenting. 

{State V. Brown^ 77 S. E. Rep., 243, Supreme Court of Appeals of 
West Virginia.) 

NEUTRALITY LAWS: Exportation of arms and munitions of war into 
American countries where conditions of domestic violence exist. 

The joint resolution of March 14, 1912 (37 Stat., 630), provides 
that, whenever the President shall find that in any American country 
conditions of domestic violence exist which are promoted by arms 
or munitions of war procured from the United States, and shall 
make proclamation thereof, it shall be unlawful to " export," except 
under such limitations as shall be prescribed by the President, any 
arms or munitions of war from any place in the United States to 
such country, until otherwise ordered by the President. Fleld^ that 
the word " export," was limited to a transportation of arms or muni- 
tions of war from any place in the United States to " such country ; " 
and hence a charge that the accused, with intent to export munitions 
of war from the city of El Paso, Tex., to a place in Mexico, in viola- 
tion of a proclamation by the President pursuant to such resolution, 
did make a shipment of cartridges, etc., by transporting them on his 
person from one point to another in the city of El Paso, did not 
charge a violation of the resolution. 

{United States v. Chavez, 199 Fed. Rep., 518.) 

Note. — The above decision was reversed May 5, 1913 (No. 863, 
October Term, 1912), by the Supreme Court of the United States, 
which held in effect that the term " to export " as used in said reso- 
lution should not be construed in its strict sense, but should be held 
to include any shipment of the prohibited articles within the limits 
of the United States with intent to remove them to the foregn 
country named in the President's proclamation, although such ship- 
ment may not reach the country for which it was destined. 



NEUTRALITY LAWS: Power of arrest by military authorities without 
probable cause. 

A Mexican alien, identified with the revolution prevailing in his 
country, came into the United States, and while there was by order 
of the President arrested and held by the military authorities with- 
out trial while an effort was being made to show that he was in the 
United States for the purpose of violating the neutrality laws. A 
writ of haheas corpus was sued out to secure his release from the 
custody of the military authorities. 

Held, that the military authorities were without power to arrest 
the petitioner in a summary manner, and hold him in arrest pending 
an effort to show that he was in the United States for the purpose of 
violating the laws ihereof ; that the order directing his arrest was 
void ; and that he was entitled to his discharge. 

(Ex parte Orozco, 201 Fed. Rep., 106.) 

93668°— 17 14 



BULLETIN 18. 

BUI.LETIN 1 WAR DEPARTMENT, 

No. 18. J Washington, June 7, 1913. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of May, 1913, and of certain decisions 
of the Comptroller of the Treasury, is published for the information 
of the service in general. 
[2043902, A. G. O.] 
By order or the Secretary of War : 

LEONARD WOOD, 
Major General^ Chief of Staf. 
Official. 

H. O. S. HEISTAND, 

Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

AE.MY: Organization of; appointment of officers in the Corps of Engineers: 

Section 5 of the act of /February 27, 1911 (36 Stat., 957), increased 
the number of officers in the Corps of Engineers of the United States 
Army, and provided that vacancies in the grade of second lieu- 
tenant therein should thereafter be filled by promotions of cadets 
from the portion of the Corps of Cadets assigned to the Engineer 
Corps, and that the remaining vacancies in any fiscal year, after 
such promtions, should be filled from civil life as in said act pro- 
vided. 

Held, that an officer holding a commission as lieutenant in the in- 
fantry of the Army was not eligible to appointment to a vacancy in 
the grade of second lieutenant in the Engineer Corps remaining after 
the portion of cadets which had been assigned to the Engineer Corps 
had been exhausted in filling vacancies, as he was not a civilian. 

(6-22j6, J. A. G., May 12, 1913.) 



AVIATION DTTTY: Details for; when additional pay begins. 

The Army appropriation act of March 2, 1912 (37 Stat., 705), 
provides that from and after the passage of said act — 

" The pay and allowances that are now or may be hereafter fixed 
by law for officers of the Regular Army shall be increased thirty- 
five per centum for such officers as are now or may be hereafter de- 
tailed by the Secretary of War on aviation duty: Provided, That 
this increase of pay and allowances shall be given to such officers 
only as are actual flyers of heavier than air craft, and while so de- 
tailed." 
210 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 211 

Held, that the date of the officer's first flight after being detailed 
to this duty should be regarded as the date upon which his increase of 
pay and allowances should commence, and not the date of his re- 
porting for duty; but that after his first flight, the additional pay 
should not cease if he holds himself in readiness for such duty and 
if, through no fault of his own, no flight can be made for a limited 
period. 

(72-181, J. A. a. May 5, 1913.) 



BURIAL EXPEITSES: Of general prisoners; embalming remains for 
shipment. 

On application for opinion as to whether or not any expense was 
authorized for embahning and preparing for shipment the remains 
of a deceased general prisoner, held, that there was no appropria- 
tion under the control of the War Department out of which such 
expense or charges for shipment to relatives of the remains of a 
general prisoner, could be paid, and that the ordinary means avail- 
able at the post for the disposition of remains of deceased prisoners 
should be availed of. 

(80-400, J. A. G., May 22, 1913.) 



CLERKS A]Sri> EMPLOYEES: In the executive departments; promotions 
and demotions in the classified civil service. 

Section 4 of the legislative, executive, and judicial appropriation 
act of August 23, 1912 (37 Stat., 413), provides that: 

" The Civil Service Commission shall, subject to the approval of 
the President, establish a system of efficiency ratings for the classi- 
fied service in the several executive departments in the District of 
Columbia based upon records kept in each department and inde- 
pendent establishment with such frequency as to make them as 
nearly as possible records of fact. Such system shall provide a 
minimum rating of efficiency which must be attained by an em- 
ployee before he may be promoted; it shall also provide a rating 
below which no employee may fall without being demoted; it shall 
further provide for a rating below which no employee may fall 
without being dismissed for inefficiency. All promotions, demo- 
tions, or dismissals shall be governed by provisions of the civil- 
service rules * * *." 

Held, that the provision " all promotions, * * * or dismissals 
shall be governed by provisions of the civil-service rules," construed 
with reference to other provisions with which it is associated, was not 
then operative and would become effective only after the Civil Serv- 
ice Commission had established, with the approval of the President, 
a system of efficiency ratings for the classified service in the several 
executive departments in the District of Columbia. 

(6-112, J. A. a, May 10, 1913.) 



CONTRACTS: Employment of alien labor upon G-overnment work. 

A part of the work for the construction of a water system at 
Schofield Barracks, Hawaii, was let, after advertisement, to a com- 
pany which sublet the work of constructing the ditch, or a portion 



212 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

of it, to Japanese laborers. The contract did not contain any restric- 
tion against the employment of alien laborers. 

Held., that there was no law requiring or permitting a provision in 
contracts forbidding the employment of alien labor, and in the ab- 
sence of legislation giving such authority the Secretary of War was 
w ithout authority to impose such a requirement. Dig. Ops. J. A. G., 
1912, p. 373. 

(7G-712, J. A. G., May 15, 1913.) 



CONTRACTS: Bid and acceptance; set-ofE; considering bids received after 
hour of opening. 

The purchasing commissary at New York City by bid and ac- 
ceptance agreed with a company to purchase certain amounts of 
vegetables for the. month of May, 1913, but the company failed to 
make deliveries in pursuance of said bid and acceptance, except for 
a limited quantity, necessitating the purchase in open market of a 
quantity of vegetables at advanced prices in order to make up the 
deficiency. It was desired to set-off the additional cost against an 
amount due from the Government to the same company under a con- 
tract for furnishing meat, vegetables, fruit, etc., to ships of the Navy 
Department. 

Held^ that the mere proposal by a bidder and an acceptance by a 
Government officer did not operate as a contract, as this did not 
amount to a compliance within section 3744, Revised Statutes, which 
requires that every contract made by the Secretary of War on behalf 
of the United States shall be reduced to writing and signed by the 
parties thereto at the end thereof, and that consequently the differ- 
ence in cost could not be set off against the amount which might be 
due said company under its contract with the Navy Department, nor 
could any action be taken to compensate the Government for the 
loss. 

(70-742, J. A. G., May 25, 1913.) 

Two bids were received in response to an advertisement for bids 
on a Government contract after the hour fixed for opening such 
bids, both of which appeared by postmarks thereon to have been 
mailed in sufficient time to have reached the place of opening the 
bids by the hour appointed for that purpose, although the margin 
allowed was small. 

Held^ that these cases might be regarded as coming within the 
terms of paragraph 547, Army Regulations, 1910, as amended, but 
that even if it be considered that the time allowed Avas too short, the 
facts would warrant a waiver of the regulation and a consideration 
of the bids along with the others, as it was clear that the bidders 
could not have been given any unfair advantage by such delay in 
receiving the bids. 

(76-251, J. A. G., May 31, 1913.) 



EIGHT-HOUR LAW: Contract to be performed in Alaska; extraordinary 
emergency and extraordinary conditions. 

The Government entered into a preliminary agreement, subject to 
the approval of the Chief Signal Officer of the Army, for the recon- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 213 

struction of a portion of the Washington- Alaska Military Cable and 
Telegraph System. The specifications called for the delivery of cer- 
tain wooden poles which were to be set into the ground and each 
supported by three braces in the form of a tripod, both poles and 
braces to be furnished and placed in position by the contractor. 
Payments were to be made as follows : 

(a) Upon the delivery of braces at points where poles and tripods 
are to be set and the acceptance of the same in lots of 2,000 or more, 
at the rate of 75 cents per brace. 

(b) Poles and tripods when set as per specification will be ac- 
cepted in lots of 500 or more, and when accepted will be paid for 
at the rate of 75 cents per tripod. 

((?) Clearance of right of way will be paid for upon final settle- 
ment and completion of the contract, and will be included in the 
final payment upon acceptance of the entire work of reconstruction. 

On application for opinion as to whether or not the provisions of 
the eight-hour law applied, and as to whether the contract should 
contain the stipulation required by the act of June 19, 1912 (37 
Stat., 137), 

Held, that the purchase of braces and their transportation to. the 
places where they were to be set up, fell within the following pro- 
vision of the second section of the act of June 19, 1912 : 

" That nothing in this act shall apply to contracts for transporta- 
tion by land or water * * * or for the purchase of supplies by 
the Government, whether manufactured to conform to particular 
specifications or not ; " but that the work of placing the poles and 
braces in position and of clearing the right of way was subject to 
the provisions both of the act of August 1, 1892 (27 Stat., 340), and 
the said act of June 19, 1912. 

Held further, that the officer in charge of the work was in the best 
position to judge as to whether or not an extraordinary emergency 
sufficient to excuse noncompliance with the former act, or extraordi- 
nary conditions sufficient to excuse noncompliance with the latter 
act, existed in any particular case, and his honest and reasonable 
decision would not likely be reversed. 

(32-300, J. A. G., May 17, 1913.) 



EIGHT-HOTJE, LAW: Purchase of supplies; remodeling projectile hoists; 
water and electric lights; stevedoring. 

Section 1 of the act of June 19, 1912 (37 Stat, 137), prescribed that 
every contract made for or on behalf of the Government involving 
the employment of laborers or mechanics shall contain a provision 
that no such laborer or mechanic doing any part of the work contem- 
plated by the contract shall work more than eight hours in any one 
calendar day, with a provision for exacting a penalty for violation 
of the act. Section 2 excepts from the general provisions of the law 
contracts, among others — 

" For the purchase of supplies by the Government, whether manu- 
factured to conform to particular specifications or not, or for such 
materials or articles as may usually be bought in open market, ex- 
cept armor and armor plate, whether made to conform to particular 
specifications or not." 



214 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 

It was desired to purchase new parts for and to remodel a number 
of projectile hoists installed on the Pacific coast and in the insular 
possessions so as to adapt them to the longer type of projectile to be 
furnished by the Ordnance Department, by removing certain car- 
riers therefrom and shipping them to a certain point to be modified 
by substituting new parts and remodeling old parts. 

Reld^ that there appeared to be no certain point where a projec- 
tile hoist is differentiated from like machinery in general, and hence 
the same might be considered as an article which could be pur- 
chased in the open market ; held fiwther^ that the contemplated work 
comprising the remodeling of certain parts, might be regarded in 
effect as a purchase of the remodeled article, and that such work 
fell within the exception of the law the same as the original article. 

(32-300. J. A. G., May 2, 1913.) 

It was contemplated to enter into contracts for supplying water 
at certain forts and electric light at an Army post. 

Ileld^ that water and electric light were supplies within the meaning 
of section 2_of the eight-hour law of June 19, 1912 (37 Stat., 137), 
which excepts, among other things, contracts for the purchase of 
supplies from the operation of the general provisions of the act, 
and that such contracts need not contain the eight-hour stipulation. 

(76-720, J. A. G., May 9 and 14, 1913.) 

An opinion was desired as to whether it was necessary to include 
in the conditions for bidders for stevedoring. United States Army 
transports, a reference to the act limiting the daily service of 
laborers, and whether the same was also necessary in inviting pro- 
posals for loading and trimming coal furnished by contractors on 
board transports. 

Held., that contracts of the character mentioned could not be re- 
garded as contracts for transportation within the meaning of that 
word as used in section 2 of the act of June 19, 1912 (37 Stat., 137), 
and that said contracts came within the general provisions of said 

(32-300, J. A. G., May 28, 1913.) 



EIGHT-HOXJK LAW: Expenditure of money contributed by private 
parties. 

Section 1 of the river and harbor act of March 4, 1913 (37 Stat., 
819), authorizes the Secretary of War to use any additional moneys 
that may be placed at his disposal by the Port of Coos Bay, Oreg., 
or by any other organization or by individuals for the improvement 
of the inner harbor of the bay at said place, and section 8 of said act 
(idem., 827) provides: 

" That the Secretary of War is hereby authorized to receive from 
private parties such funds as may be contributed by them to be ex- 
pended in connection with funds appropriated by the United States 
for any authorized work of public improvement of rivers and har- 
bors, whenever such work and expenditure may be considered by the 
Chief of Engineers as advantageous to the interests of navigation." 

Held., that in expending money conti'ibuted by the Port of Coos 
Bay, Oreg., or by other parties, in dredging the inner channels of the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 215 

harbor at that place, the work must be prosecuted in compliance 
with the eight-hour law of August 1, 1892 (27 Stat., 340), as amended 
by the act of March 3, 1913 (37 Stat., 726). 
(32-213.1, J. A. G., May 2, 1913.) 



EIGHT-HOUR LAW: Extraordinary emergency; mobilization camp at 
Galveston, Tex. 

On February 21 and 24, 1913, the Second Division of the Army was 
ordered to mobilize at Galveston, Tex., and it was necessary to make 
preparations for caring for the troops while stationed in that locality. 
Some of the troops were en route at the time the officer designated 
to make these preparations had reached the vicinity of Galveston, 
and certain classes of work had to be done quickly. This work was 
contracted for, and consisted of three classes, viz, arranging for 
water, building latrines, and building bridges. It appeared that the 
work could not have been completed in time by working the available 
force of laborers and mechanics only eight hours per day, and they, 
in fact, performed labor in excess of said limit. 

Held^ that the situation might be regarded as constituting an occa- 
sion of extraordinary emergency or condition within the meaning 
of the statutes limiting the employment of labor to eight hours per 
day on Government work, which would justify the employment of 
laborers and mechanics for more than eight hours per day. 

(32-232, J. A. G., May 20, 1913.) 



GRATUITY: On death, of soldier; to whom payable; estate of deceased. 

The act of May 11, 1908 (35 Stat., 108), as amended by the act of 
March 3, 1909 (35 Stat., 735), provides for the payment of a gratu- 
ity equal to six months' pay to the widow of an officer or of an en- 
listed man dying in the service from wounds or disease not the result 
of his own misconduct, or " to any other person previously designated 
by him," and further provides that — 

" The Secretary of War shall establish regulations requiring each 
officer and enlisted man to designate the proper person to whom this 
amount shall be paid in case of his death." 

Held^ that the designation of an estate, whether the estate of the 
designator or the estate of another, is not contemplated by the 
statute. 

(42-140, J. A. G., May 22, 1913). 



GRATUITY: On death of soldier; forfeiture by desertion. 

A soldier absented himself without leave June 10, 1912, at Alcatraz 
Island, Cal., and was apprehended March 12, 1913, and delivered 
to the military authorities at Jefferson Barracks, Mo. He was ad- 
mitted to the post hospital at Jefferson Barracks on March 20, 1913, 
and died in said hospital March 31 following, from a disease sup- 
posed to have been incurred during his absence, but not incurred 
through misconduct. 

There was every indication to show that the soldier intended to 
desert the service, and no steps had been taken by the Government 



216 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

looking to his restoration to duty. The act of May 11, 1908 (35 
Stat., 108), as amended by the act of March 3, 1909 (35 Stat., 735), 
allows to the widow of a soldier or enlisted man dying in the service 
of wounds or disease not the result of his own misconduct, or to any 
other person previously designated by him, an amount equal to 
six months' pay received by him at the date of his death, subject 
to certain deductions. 

Eeld^ that a soldier deserting the service repudiates his enlist- 
ment contract, afid can not in that status claim pay or allowances 
due him under said contract; that the facts in this case justified an 
administrative finding of desertion; and that by such desertion 
all right to this benefit was forfeited. 

(42-100, J. A. G., May 1, 1913.) 



INTOXICATING LIQUORS: Shipment into a State and sale therein 
contrary to the laws of such State. 

The act of March 1, 1913 (37 Stat., 699), known as the Webb law, 
forbids the shipment into any State of any " spirituous, vinous, 
malted, fermented, or other intoxicating liquor of any kind " and 
their sale or use therein, in violation of any law of such State. 

The laws of the State of Oklahoma (sec. 4007, Gen. Stat., 1908) 
make it unlawful to " manufacture, sell, barter, give away, or other- 
wise furnish," except as provided in said act, " any spirituous, 
vinous, fermented or malt liquors," or to — 

"Manufacture, sell, barter, give away, or otherwise furnish any 
liquors or compounds of any kind or description whatsoever, whether 
medicated or not, which contain as much as one-half of one per 
centum of alcohol, measured by volume, and which is capable of be- 
ing used as a beverage, except preparations compounded by any 
licensed pharmacist, the sale of which would not subject him to the 
payment of the special tax required by the laws of the United States." 

Held, that as a post exchange is a recognized agency of the Gov- 
ernment, it is not within the province of any State to regulate the 
sale of any intoxicating liquors therein, but that such sale is gov- 
erned by section 38 of the act of February 2, 1901 (31 Stat., 758), 
and that it is the duty of the Secretary of War, regardless of State 
laws, to determine what liquors are intoxicating within the mean- 
ing of said act. Advised further, that as a matter of policy no liquor 
should be permitted to be sold in a post exchange within a prohi- 
bition State, the sale of which is forbidden by the laws of such 
State. 

(48-110, J. A. G., May 14, 1913.) 



MILITARY RESERVATIONS: Relocation of a right of way for a rail- 
road; power of the Secretary of War. 

By act of April 27, 1912 (37 Stat., 92), Congress granted to a rail- 
road company the right to survey, locate, and construct a railway 
through a military reservation " upon such a line as may be deter- 
mined and approved by the Secretary of War," and further pro- 
vided that before said company should be permitted to enter upon 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 217 

the reservation " a description by metes and bounds of the lands 
herein authorized to be taken shall be approved by the Secretary 
of War." 

A right of way was surveyed and a description by metes and 
bounds of the lands proposed to be occupied was approved by the 
Secretary of War according to the provisions of said act. It after- 
wards appeared that the lands approved for station purposes and 
sidings were disadvantageously located for Government purposes. 

Held., that the Secretary of War, in approving the location as 
surveyed and described by metes and bounds, had exhausted his 
powers and could not subsequently approve a different location 
without authority of Congress; held f mother., that neither a revocable 
license nor a lease under the act of July 28, 1892 (27 Stat, 321), 
could be given for such purposes, as the same necessarily contem- 
plated an occupancy of a permanent nature. 21 Op. Atty. Gen., 637. 

(80-624, J. A. G., May 1, 1913.) 



MILITIA: Of the District of Columbia; residence within the District. 

The act of March 1, 1889, for the organization of the Militia of 
the District of Columbia, provides (25 Stat., 772) : 

"That every able-bodied male citizen resident within the Dis- 
trict of Columbia, of the age of eighteen years and under the age of 
forty-five years, * * * shall be enrolled in the militia * * *." 

The question having arisen as to the meaning of the words " resi- 
dent therein " as applied to employees of the District of Columbia 
and of the several Federal departments therein — 

Held., that the period of enlistment in the National Guard of 
the District of Columbia having been fixed by Congress at three 
years, employees of the District or of the Federal departments 
therein are eligible to enlistment in the National Guard of the 
District, so far as residence is concerned, if they actually have their 
places of abode in the District and intend to remain there indefi- 
nitely or for a period of not less than three years from the date of 
enlistment. 

(58-811, J. A. G., May 26, 1913.) 



MILITIA: Organization; conformity to that of the Begular Army; line 
and staff. 

Section 3 of the militia act of January 21, 1903 (32 Stat., 775), as 
amended by section 2 of the act of May 27, 1908 (35 Stat, 399), 
provides inter alia that — 

" On and after January 21, 1910, the organization, armament, and 
discipline of the Organized Militia in the Several States and Ter- 
ritories and the District of Columbia shall be the same as that which 
is now or may hereafter be prescribed for the Regular Army of the 
United States, subject in time of peace to such general exceptions as 
may be authorized by the Secretary of War.'- 

In a report by this office of June 29, 1909 (C. 14148-F), when the 
requirements of section 1114, Revised Statutes, prescribing brigade 
and division organizations, were held in abeyance as provided in 



218 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

said section, it was held that the establishment of higher commands 
than regiments of the Organized Militia was left to the discretion of 
the several States, so long as the military commands of and below 
regiments conformed to the organization of the Regular Army. 
Since that opinion was rendered, regulations have provided for the 
organization of the Regular Army into brigades and divisions in 
time of peace to conform to the war organization prescribed by law. 

Reld^ that section 3 of the act of January 21, 1903, as amended, 
contemplates that where divisions and brigades are organized in 
the militia of any State they shall conform to the corresponding 
organizations in the Regular Army, and that such organizations 
shall extend to all units of the line and staff, except as otherwise 
provided by the statute. 

(58-210, J. A. G., May 17, 1913.) 



MILITIA: Pay of ofl^cer in Organized Militia wTio is also a retired en- 
listed man of the Regular Army. 

A quartermaster sergeant, United States Army, retired, who had 
accepted a commission in the Organized Militia of a State, desired 
to know whether he could draw his pay as an officer of the Organized 
Militia while engaged in field or camp service for instruction, as 
contemplated by section 14 of the present militia law of January 21, 
1903 (32 Stat., 777), and also his retired pay. 

lleld^ that there is no Federal statute or general principle of 
Federal law which prohibits a retired enlisted man of the Regular 
Army, who is also a commissioned officer of the Organized Militia 
of a State, from receiving pay as such commissioned officer in accord- 
ance with the provisions of section 14 of the militia law, as well as 
his pav as a retired enlisted man of the Army. 

(88^931. J. A. G., May 20, 1913.) 



OmCIAL E-ECOUDS: Destruction of, at office of a depot quartermaster. 

The depot quartermaster at Chicago, 111., requested that action 
be taken to dispose of certain records of the Judge Advocate's De- 
partment stored at his depot. 

The act of Febmary 16, 1889 (25 Stat., 672), as amended by the 
act of March 2, 1895 "(28 Stat., 933), provides for the sale or dis- 
position of files of papers, not of permanent value or historical 
interest, that have accumulated in any one of the executive depart- 
ments of the Government or " in the various public buildings under 
the control of the several executive departments of the Government." 

Ileld^ that this makes provision for the disposition of records on 
file in Washington, but as the quartermaster's department at Chi- 
cago is not a part of an executive department within the meaning 
of the law, the records in this case can not be disposed of in pur- 
suance of said act. There is, therefore, no authority for disposing 
of these records unless they include records of regimental, garrison, 
or summary courts, the destruction of which is provided for by the 
act of March 3, 1877 (19 Stat., 310), and section 4 of the act of 
June 18, 1898 (30 Stat, 483). 

(66-320, J. A. G., May 6, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 219 

RESPONSIBILITY: Disposition of unserviceable property. 

Paragraph 1039, Army Regulations, 1910, provides that china and 
glass ware belonging to the mess outfit of a military organization 
changing station shall, on the order of the commanding officer of 
the post or station, be inspected, and that all such ware which is 
found to be serviceable shall be turned over to the quartermaster 
for reissue, and all found to be unserviceable shall, after the author- 
ized allowance of 5 per cent a quarter on account of breakage shall 
have been deducted, be destroyed and the money value thereof 
charged against the responsible officer. The report of the survey 
when approved by the commanding officer shall be final. 

An inspection of china and glass ware of a company was ordered 
only a short time before said organization changed its station, and 
the same having been found to be serviceable, was turned over to 
the quartermaster of the post by order of the commanding officer 
of the post, who approved the survey as required by regulation, 
although the report thereof was imperfect. Afterwards a board of 
survey appointed for the purpose found similar property in the 
hands of the depot quartermaster, supposed to be the same as that 
which had been turned over to him, unserviceable. 

Held^ that under the circumstances the survey ordered by the 
commanding officer and approved by him should be taken as final, 
and that, if unserviceable property was found in the hands of the 
depot quartermaster, the same should be disposed of by him in the 
usual manner and thereupon he should be relieved from further 
responsibility. 

(80^120, J. A. G., May 31, 1913.) 



RETIRED OFFICERS: Active duty in certifying to the destruction of 
worn-out property. 

A circular of the Quartermaster's Department required that the 
certificate of the accountable officer to the destruction of certain 
worn-out expendable property issued to troops should be sup- 
ported by the certificate of a disinterested officer to the effect that 
the property had been destroyed in his presence. A recruiting 
officer of the Army desired to know whether a retired officer not 
on active duty could be allowed to make this certificate as the dis- 
interested officer. 

Held, that this certificate contemplated the performance of active 
duty in seeing to the destruction of the property, to which duty a 
retired officer, not on active duty, could not lawfully be assigned, and 
therefore such an officer could not make the required certificate. 

(88-500. J. A. G., May 17, 1913.) 



SERVICES: Gratuitous; accepting gratuitous transportation in relieving 
flood sufferers. 

Several railway companies had participated in the movement of 
a special train from Washington, D. C, to Cincinnati, Ohio, for 
the Secretary of War and party in connection with the furnishing 
of relief to sufferers from the unusual floods in the latter State, and 



220 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

it was desired to know whether this service, which was rendered 
gratuitously, coukl lawfully be accepted as such. 

Section 3679, Revised Statutes, as amended by the act of Feb- 
ruary 27, 1906 (34 Stat., 40), prohibits, among other things, the 
acceptance of " voluntary service for the Government," but excepts 
from the prohibition " cases of sudden emergency involving the 
loss of human life or the destruction of property ; " and section 1 
of the interstate-commerce act, in prohibiting common carriers from 
furnishing free passes or free transportation, contains a proviso that 
the prohibition shall not — 

" Be construed to prohibit * * * any common carrier from 
carrying passengers free with the object of providing relief in cases 
of general epidemic, pestilence, or other calamitous visitation." 

Held, that the gratuitous services of the several railway companies 
in furnishing transportation to the Secretary of War while assisting 
in the distribution of Government relief for the flood sufferers, might 
legally be accepted, as the case came within the exceptions of the 
two statutes referred to. 

(76-030, J. A. G., May 10, 1913.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests- prepared in tlie office of the Judge Advocate General.) 

CEMETERIES: Marking graves of Confederate dead; appropriation 
available. 

The act of March 9, 1906 (34 Stat., 56), authorizes the Secretary 
of War to ascertain the location and condition of gi*aves of the 
soldiers and sailors of the Confederate Army and Navy in the Civil 
War who died in Federal prisons and military hospitals in the north 
and who were buried near the places of their confinement, and to 
cause to be erected white marble headstones over the same. The 
act of August 24, 1912 (37 Stat., 439), appropriates— 

" For continuing the work of furnishing headstones of durable 
stone or other durable material for unmarked graves of Union and 
Confederate soldiers, sailors, and marines^' — 

in national, post or other cemeteries and burial places under the 
authority of various acts of Cingress, including the act of March 9, 
1906. 

Ileld^ that the Secretary of War under said appropriation was 
authorized to furnish headstones for unmarked graves of Confed- 
erate soldiers buried in national cemeteries as provided in said act 
of March 9, 1906. 

(Comp. of the Treas., May 13, 1913.) 



CLERKS AND EMPLOYEES: Extra compensation to; clerk in Quarter- 
master's Department at large. 

A clerk in the Quartermaster's Department at large was in receipt 
of a compensation of $1,000 per annum payable from the appropria- 
tion for " Incidental expenses. Quartermaster's Department " of the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 221 

Army made by the act of August 24, 1912 (37 Stats., 580). His 
appointment or designation was made by the authority of the Sec- 
retary of War and the amount of his compensation determined in 
the individual case. While so employed he performed extra clerical 
services for the post laundry by keeping the books, tracing collec- 
tions, etc. This work was performed outside of his office hours and 
was not required as a part of his duties as clerk in the Quartermas- 
ter's Department. For these extra services it was proposed to pay 
him $50 per month from the receipts of the post laundry, which 
amount was not fixed by any law or regulation. 

Held^ that not being a clerk in an executive department, he did not 
come within the prohibition of section 1764, Revised Statutes, for- 
bidding compensation for extra services to a clerk in such depart- 
ment, and not being an officer or other person whose salary or com- 
pensation is fixed by law, he did not come within the prohibition of 
section 1765, Revised Statutes. Held., therefore, that there w^as no 
legal objection to paying the additional compensation proposed. 

(Comp. of the Treas., Apr. 16, 1913.) 



CONTRACTS: Delay in approval; delivery after time specified and purchase 
in open market. 

A contract dated September 17, 1912, was made subject to the ap- 
proval of the commanding general of the Central Division, but was 
not approved by him until November 5, 1912. The contractors were 
required by the contract to make deliveries of hay at a military post 
at such time and in such quantities as the receiving officer might 
direct at a certain price for October deliveries and at a higher price 
for November deliveries. Purchases were made in open market at 
rates higher than the contract price to make up for short deliveries 
during the month of November, and it was sought to charge the con- 
tractors the difference between the price paid and the contract price 
for deliveries in that month. 

Held., that, as the contract did not become effective until approved, 
the contractors were entitled to be paid for all hay delivered and 
accepted in November at November prices, although delivered in 
response to calls intended for and given in time for delivery in Octo- 
ber ; held further., that the contractors could not be considered as in 
default on any deliveries prior to the approval of the contract, and 
could not be charged with the difference in cost between the market 
price which the Government paid and the contract price for any 
purchases made to cover short deliveries prior to such approval ; but 
that it appeared from the facts submitted that the contractors had 
had sufficient time after the approval of the contract to make the 
deliveries called for for November and were chargeable with such 
difference in cost for shortage in deliveries which should have been 
made in that month. 

(Comp. of the Treas., May 12, 1913.) 



PAY OF OFFICERS: Officer in employ of foreign Government under special 
authority of Congress; awaiting orders. 

An officer of the Army was by joint resolution of Congress " per- 
mitted to accept " from a foreign Government the position of in- 



222 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

structor of coast artillery, together with "the emoluments, rights, 
and privileges pertaining thereto." On submission by the Auditor 
for the War Department of an original construction of said joint 
resolution — 

Held^ that the status of the officer while so employed was more 
nearly allied to that of an officer on waiting orders than to one on 
leave of absence, and that section 12&5, Revised Statutes, regarding 
leave of absence was not applicable to the case ; held^ therefore, that 
the officer while so engaged was entitled to the full pay of his grade 
instead of his pay as on leave of absence. (See Op. J. A. G., June 
15,1912 (C. 29481).) 

(Comp. of the Treas., May 1, 1913.) 



PRIVATE PROPERTY: Loss of horse; delay in presenting claim. 

The act of March 3, 1885 (23 Stat., 350), directs the accounting 
officers of the Treasury to examine into and determine the value of 
private property of officers and enlisted men in the military service 
lost or destroyed under certain conditions, and provides for the pay- 
ment of the same, with the proviso that all claims then existing should 
be presented " within two years and not after " from the passage of 
said act, and that all such claims thereafter arising should be pre- 
sented " within two years from the occurrence of the loss or de- 
struction." 

An officer's horse was destroyed on March 6, 1911, under conditions 
claimed to have been such as to entitle him to reimbursement for the 
loss under said act. The papers relating to this claim were received 
in the office of the Quartermaster's Department on December 20, 
1911, and on the next day were returned to the Adjutant General 
recommending reference to the commanding general of the Philip- 
pine Division, inviting attention to the decision of the Comptroller 
of the Treasury of July 24, 1911 (18 Comp. Dec, 47), to the effect 
that the class of private property belonging to officers and enlisted 
men, to which the act of March 3, 1885, relates, does not include horses 
belonging to officers in the military service and that the accounting 
officers of the Treasury had no jurisdiction over such claims. Had 
it been .known in said office that the accounting officers of the Treas- 
ury had jurisdiction over claims for horses lost by officers in the 
military service this claim would have reached the Auditor for the 
War I)epartment within the two years required by the act. The 
failure to reach the auditor's office in time occurred through no fault 
of the officer. The claim did not, in fact, reach the accounting officers 
until April 9, 1913, or more than two years after the loss had occurred. 

Held^ that the law requires that all such claims must be filed with 
the accounting officers within two years from the occurrence of the 
loss or destruction, and that the filing of the claim in the War Depart- 
ment within such period is not a filing with the accounting officers 
within the meaning of the act (9 Comp. Dec, 510) ; held further^ 
that in view of the plain provisions of the act the comptroller was 
not at liberty to consider the reasons why the claim was not presented 
to the accounting officers within the period named in the statute. 
(Comp. of the Treas., May 17, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 223 

QUARTERS: Commutation of, while awaiting sailing of a steamer; change 
of orders. 

An officer of the Army was relieved from duty at his permanent 
station in time to permit him to proceed to Seattle, Wash., and there 
take passage on a steamer going to a post in Alaska to which he had 
been assigned. After his arrival in Seattle, and on the day before 
the sailing of the steamer on which he was to take passage, the officer's 
orders were changed by assigning him to a different station, and he 
was compelled to remain in Seattle for a period of time awaiting the 
sailing of another vessel going to his new station. 

Held., that the officer acquired no right to quarters or to commuta- 
tion thereof during the time he was compelled to await the sailing 
of his steamer to his new station, the delay being regarded as an 
incident of his travel. 

(Comp. of the Treas., May 2, 1913.) 



TRANSPORTATION: Release of carrier from liability; Government bill of 
lading. 

A shipment of household goods of an officer changing station was 
made upon a regular form of Government bill of lading, which is 
subject to all the conditions and limitations of a uniform or standard 
bill of railroad companies and takes the same rates provided for ship- 
ments therein with the addition that — 

" The shipment is at ' owner's risk,' or released rates where the 
tariff provides lower rates on that account, and at ' company's risk,' 
where the tariff makes no such provision." 

Two rates were provided for the transportation of household goods, 
one a lower rate where the value of the goods was limited or released 
to $10 per hundred pounds, and the other a higher rate where there 
was no such release, and where the transportation company would be 
liable for the full value of the property in case of loss. It was 
claimed that at the time of the shipment a classification was effective 
which provided that where shippers desired reduced rates based 
upon agreed values — 

"A statement to that effect must be written out or stamped in full 
upon the bill of lading at time of shipment and the shipper required 
to accept in writing the value expressed," and that " where shippers 
do not desire to avail themselves of the reduced ratings based upon 
agreed value, notation of that effect should be inserted on the bill of 
lading by the agent at time of shipment." 

Held., following the interpretation heretofore placed upon the pro- 
visions of the Government bill of lading, that the shipment in ques- 
tion should be regarded as having been made at the reduced rates 
based upon a release of value and consequent release of liability of 
the transportation company to value required to secure reduced rates, 
and that the claim for the difference between the higher and the 
lower rate should be disallowed. 

(Comp. of the Treas., May 21, 1913.) 



TRAVELING EXPENSES: Civilian employees; expense of board and lodg- 
ing at their homes while on temporary duty. 

Certain civilian employees on temporary duty presented with their 
expense accounts subvouchers signed by their wives which included 



224 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

board and lodging. It was understood that they were living at their 
homes at the time they were engaged on temporary duty. Under 
paragraph 744, Army Regulations, 1910, civilian employees in any 
branch of the military service are entitled to reimbursement of actual 
expenses when traveling under competent orders for — 

" Cost of meals, and lodgings including baths, tips, and laundry 
work, not to exceed $4.50 a day while on duty at places designated in 
the orders for the performance of temporary duty." 

Ileld^ that civilian employees receive this reimbursement on the 
theory that they continue in a traveling status, and that by presenting 
vouchers signed by their wives it would appear that they had aban- 
doned this status. The payment of expense accounts of such em- 
ployees supported by receipts signed by their wives for board and 
lodging was, therefore, unauthorized. 

(Comp. of the Treas., May 17, 1913.) 



BULLETIN 23. 

Bulletin 1 WAR DEPARTMENT, 

No. 23. j Washington, Jtily 15, 1913. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of June, 1913, and of certain decisions of 
the Comptroller of the Treasury, and of the courts, and of opinions 
of the Attorney General, is published for the information of the 
service in general. 

[2054671, A. G. O.] 

By order of the Secretary or War : 

LEONARD WOOD, 

Major General, Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

APPROPRIATIONS: Lump-sura; payment for personal service; transfer 
from a statutory position. 

It was proposed to transfer a clerk in tiie War Department receiv- 
ing a statutory compensation of $1,800 per annum to a position 
newly created involving the performance of essentially different 
duties at a compensation of $3,600 per annum, to be paid from lump- 
sum appropriations. Section 7 of the general deficiency act of August 
26, 1912 (37 Stat., 626), provides: 

"Nor shall any person employed at a specific salary be hereafter 
transferred and hereafter paid from a lump-sum appropriation at a 
rate of compensation greater than such specific salary." 

Held, that the above provision was intended only to prevent the 
transfer from a position with a specific salary or compensation to 
another position paid from a lump-sum appropriation at an increased 
compensation where the duties or services required were the same or 
similar, but that where the duties are essentially dissimilar such 
transfer might be made without violating the provisions of said act, 
and that the proposed transfer might lawfully be made. Decision 
of Comptroller of the Treasurv, June 6, 1913. 

(5-075, J. A. G., June 13, 1913.) 

Similarly held, that a clerk at a specific salary in the Department 
of Agriculture might be transferred to a position in the War Depart- 
ment at an increased compensation paid from a lump-sum appropria- 
tion where the duties to be performed were essentially different. 

(5-075, J. A. G., June 13, 1913.) 

93668°— 17 15 225 



226 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

APPROPRIATIONS: Lump-sum; payment for personal services; increase of 
compensation by reason of increased efficiency; same or similar services. 

It was proposed to increase the pay of a junior engineer in a dis- 
trict engineer's office who was paid from a himp-sum appropriation, 
on the ground of his long-continued service and consequent increase 
in proficiency and capacity for work. 

Held., that section 7 of the general deficiency act of August 26, 
1912 (37 Stat., 626), forbids the increase of compensation for per- 
sonal services of employees paid from lump-sum appropriations for 
the performance of the same or similar services beyond the amount 
paid for such services during the preceding fiscal year, and that in- 
creased proficiency arising from experience and length of service does 
not so differentiate the services as to prevent them from being the 
same or similar within the meaning of the statute; held., therefore, 
that the proposed increase could not be made. 

(5-075, J. A. G., June 20, 1913.) 

It was proposed to increase the compensation of an employee in 
the engineer service at large from July 1, 1913, payable from a lump- 
sum appropriation, without changing the character of his service, 
the increased compensation not to exceed the amount paid by the 
United States Reclamation Service for the same or similar service, 
during the preceding fiscal year. 

Held., that the act forbidding the increase of compensation of em- 
ployees paid from lump-sum appropriations to a greater rate than 
that paid for the same or similar services during the preceding fiscal 
year contemplated services rendered under the same or similar con- 
ditions and at the same or like places, and that an employee could not 
be continuously promoted until his pay reached the highest rate paid 
to any one rendering the same or similar services in any branch of 
the Cfovernment service; held., therefore, that the employee could 
not be paid at a greater rate of compensation than that which he 
had received for the same or similar services during the next pre- 
ceding fiscal year. 

(5-075, J. A. G., June 27, 1913.) 



APPROPRIATIONS: Setting aside a certain portion of a general appropria- 
tion for a particular purpose; availability of the surplus. 

The general appropriation for " roads, walks, wharves, and drain- 
age " for the fiscal year 1913 in the act of August 24, 1912, contains 
the proviso (37 Stat., 584) — 

' That thirty thousand dollars of the amount herein appropriated, 
or so much thereof as may be necessary, may be used for draining 
and filling swamps within the Government reservation on Constitu- 
tion Island, United States Military Academy, West Point, New 
York." 

Only $29,000 of this amount was found necessary for the purpose, 
and the question arose as to whether or not the remaining $1,000 
could be used for the general purposes of the appropriation. 

Held, that while the effect of a provision of this character, if un- 
qualified, was to set aside from the ap[)ropriation the amount named 
for the specific purpose, in which case no portion of such amount 
could be used for any other purpose, yet as the language in this case 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 227 

was qualified by the clause " or so much thereof as may be necessary," 
the effect was to set aside only so much from the general appropria- 
tion as might be needed for the specific purpose, leaving the balance 
available for the other purposes of the appropriation. 
(5-24^.2, J. A. G., June 3, 1913.) 



BONDS: Justification and suflEiciency of sureties on bidder's guarantees and 
contractors' bonds; duplicate certificates. 

' The Chief of the Quartermaster Corps submitted the question as to 
whether a certificate of the clerk of a United States court as to the 
sufficiency of sureties on bidders' guaranties and contractors' bonds 
was required to be placed on more than one of the instruments where 
the contracts are required to be executed in triplicate, or whether it 
would be sufficient if the certificate should be attached to one number 
with A reference thereto on the others. 

Held, that the affidavit of justification and certificate of sufficiency 
of sureties to a contractor's guaranty or bond are no part of the in- 
strument (Dig. J. A. G., 1912, p. 195), and that there was no legal 
objection to requiring the certificate to be placed only upon one num- 
ber of the guaranty or bond, reference being made thereto on the 
other numbers. 

(12-311, J. A. G., June 5, 1913.) 



CONTRACTS: Opening- of bids; accepting a proposal after the time fixed 
for receipt of same. 

A contract was to be let for remodeling a building, and the time for 
opening proposals therefor was fixed at 11 a. m. The lowest bid was 
received 7 minutes after the time fixed for opening, but 13 minutes 
before the bids were actually opened. It was not claimed, nor did it 
appear, that the lowest bidder derived any advantage from the delay 
in submitting his bid. 

Held, that under these circumstances the lowest bid might be re- 
ceived and the contract awarded to the lowest bidder, the case being 
one where the strict requirements of the regulations might be waived. 

(76-251, J. A. G., June 12, 1913.) 



DISCIPLINE: Prisoner awaiting trial; punishment. 

An enlisted man of the Army under confinement awaiting trial 
was subjected to solitary confinement on bread and water for refusal 
to work, by order of the post commander, who was of opinion that 
discipline demanded immediate action, and that his action was justi- 
fied by the Manual of Guard Duty. Paragraph 343 of said manual 
prescribes that : 

"A general prisoner who refuses to work may, for his first offense, 
be closely confined and deprived of his next meal, but food will be 
allowed him as soon as he consents to resume work." 

Paragraph 358 of the same manual provides that : 

" The foregoing t-ules will be enforced with reference to garrison 
prisoners so far as applicable." 



228 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

Fleld^ that said paragraphs of the Manual of Guard Duty had no 
application to an enlisted man held awaiting trial, as he was not a 
garrison or a general prisoner, nor Avas he being punished. 

Held furth-er^ that an enlisted man awaiting trial should not be 
punished for refusal to perform duty except as any other enlisted 
man not serving sentence might be so punished, and that, except in 
extreme cases where the necessities of discipline required immediate 
action, the pos-t commander would not be authorized to resort to 
summary punishment, but should avail himself of the orderly pro- 
cedure prescribed for maintaining discipline. 

(30-133, J. A. G., June 9, 1913.) 



FORAGE: Allowance for mount of an officer on leave of absence. 

A first lieutenant of the Philippine Scouts desired to have forage 
issued for his authorized private mount while he was away from 
his permanent station on leave of absence, and an opinion was asked 
as to whether the same might lawfully be issued in view of the de- 
cision of the Comptroller of the Treasury of January 17, 1913 (19 
Comp. Dec, 453), digested in W. D. Bui. No. 4, p. 16, current series. 
Said opinion related to an officer of the Medical Reserve Corps who 
had been granted a leave of absence and ordered to his home to be 
relieved from active duty upon the expiration of such leave, and who 
claimed forage for his private authorized mount kept by him at his 
home. 

Held, that it was not apparent that the Comptroller of the Treas- 
ury had overruled the long-established practice of allowing officers 
on leave of absence but not detached from their stations forage for 
their private mounts owned and kept by them at the station to which 
they were attached. 

Held further^ that within the meaning of the statute relating to the 
issue of forage for private authorized mounts of officers, an officer on 
leave of absence v. as still to be regarded as on duty at the station to 
which he was attached, and that forage might be issued for his au- 
thorized mount during his absence on such leave. The concluding 
portion of the digest of the Comptroller's decision was perhaps stated 
too broadly, and should have contained the qualification that the 
mount for which forage was claimed was one kept by the officer at his 
home and elsewhere than at the station to which he had been attached 
for dutv. 

(72-143, J. A. G., June 25, 1913.) 



MILITIA: Officers attending Field Service School for Medical Officers; quar- 
ters and commutation thereof. 

Certain officers of the Organized Militia attended the Field Service 
School for Medical Officers at Leavenworth, Kahs., from April 1 to 
May 23, 1913, in pursuance of authority contained in section 16 of 
the'militia law of January 21, 1903, as amended by section 10 of the 
act of May 27, 1908 (35 Stat., 402), which provides that whenever an 
officer of tiie Organized Militia shall, under certain conditions recited, 
attend and pursue a regular course of study at any military school or 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 229 

college of the United States such officer " shall receive from the an- 
nual appropriation for the support of the Army, the same travel al- 
lowances and quarters or commutation of quarters to which an officer 
* * * of the Regular Army would be entitled for attending such 
school or college under orders from proper military authority."' 

Upon arrival at the school these officers were assigned to and occu- 
pied public quarters, but afterwards of their own volition moved out 
of them and provided their own quarters, apparently believing that 
they were entitled either to commutation of quarters or quarters in 
kind as they might elect. 

Section 16 of General Orders No. 128, W. D., 1911, provided with 
reference to officers of the militia attending such schools that " militia 
officers can not be furnished with quarters in kind," and paragraph 
341 of the Regidations of the War Department for the Government 
of the Organized Militia contains substantially the same provision. 

Held^ that there is no authority for the rule that militia officers so 
circumstanced can not be furnished quarters in kind, and that these 
officers, having been furnished quarters in kind, were not entitled to 
commutation thereof, as an Army officer similarly situated would 
not have been entitled to such commutation. 

(58-411.1, J. A. G., June 7, 1913.) 



MILITIA: Rental of rifle ranges purchased for, to the United States and to 
private parties; disposition of proceeds. 

On submission of the question for opinion as to the right of a state 
to charge the United States a rental for the use of a rifle range pur- 
chased for the use of its Organized Militia, and of the right of the 
state or of the United States to lease such ranges. 

Held^ that where a state rifle range was purchased from a Federal 
allotment for " promotion of rifle practice " under section 1661, Re- 
vised Statutes, and the title thereto vested in the United States, there 
was no legal authority for its leasing by the state to the United 
States and the payment of rental therefor. 

Held fuHher^ that while these ranges are the property of the 
United States, and while they are under the immediate control of the 
militia authorities of the state, they are subject to the general au- 
thority of the War Department, and that the Secretary of War, if all 
or any portion of any such a range shall not be needed for the use of 
the state militia, may authorize its lease under the provisions of the 
act of July 28. 1892 (27 Stat., 321), and that the funds derived from 
such leasing should be deposited in the Treasury of the United States 
to the credit of miscellaneous receipts. 

(58-520, J. A. G., June 2, 1913.) 



OFFICIAL CORRESPONDENCE: Telegram in relation to the purchase of a 
mount. 

An officer of the Army required by law to be mounted at his own 
expense, was directed by his commanding officer to purchase a suit- 
able mount for his use as field officer. He took the matter up with a 
purchasing officer of the Quartermaster Corps, and the latter sent 



230 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

him a telegram informing him that he had found a suitable horse 
for his use, naming the price, and advising that it be pm-chased. 
The horse was accordingly purchased and afterwards approved as a 
suitable mount. 

Held^ that the telegram was but an incident to the purchase of the 
horse, and should be regarded as pertaining to the officer's private 
business and not to the official business of the Government. 

(22-050, J. A. G., June 16, 1913.) 



OFFICIAL RECORDS: Furnishing copies for use in court. 

Copies of certain plans of work done by a contractor were desired 
by an attorney for use before a court in a suit against the contractor 
for an injury to a workman employed on the work. 

Held^ that where copies of bonds or other papers or records of the 
War Department are necessary in the administration of justice, and 
are applied for, it is usual to require a certificate of the tribunal 
before which the matter is pending to the effect that the same are 
necessary and material to such proceedings. 

Advised^ therefore, that the applicant be informed that a copy of 
the plans would be furnished for his use before the court, provided 
he should furnish a certificate or rule of the court to the effect that 
they are necessary or material to the administration of justice in the 
suit in question. Dig. Op. J. A. G., 1912, p. 829. 

(66-124, J. A. G., June 25, 1913.) 



PARDON: Effect of; forfeiture by desertion of the right to hold offices of 
trust and profit. 

A member of the Philippine Scouts was, by sentence of court- 
martial, dishonorably discharged from the service of the United 
States for desertion and hxrceny, and in addition a term of imprison- 
ment was imposed as punishment, which he served and was released. 
Upon application for pardon, 

Field, that one of the effects of desertion was to forever bar the 
deserter from holding any office of trust or profit under the United 
States, and in this regard the disqualification was a continuing one, 
and hence capable of pardon. 

Held, therefore, that the pardon had still matter upon which to 
operate and might properly be recommended. 

(68-110, J. A. G., June 28, 1913.) 



PARTNERSHIP: Payment to one member of a firm after the other has 
become bankrupt. 

A contract for the construction of a power plant at an Army 
arsenal was made with a partnership composed of two members 
doing business under the name of one of the partners as the firm 
name. Thereafter, in a suit between the partners, one of them 
was by order of court appointed as managing partner of the firm 
with authority to carry out the Government contract. The man- 
aging partner thereupon filed a bond as required by the order of 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 231 

the court and proceeded with the work under the contract, and a 
considerable amount became due for work performed. Since the 
order of the court appointing the managing partner the other 
partner went into bankruptcy, and a receiver in bankruptcy was 
appointed, who informed the commanding officer of the arsenal 
that he had determined that lie had no right to complete the con- 
tract and would act accordingly. 

Helcl^ that the bankruptcy of a partnership dissolves the firm 
(30 Cyc, 654), and where the interest of one partner is trans- 
ferred in bankruptcy or insolvency, the right to the control and dis- 
position of the firm assets vests in the other partners (30 Cyc, 664). 

Held further^ that it was proper for the commanding officer to 
permit the managing partner to complete the work under the 
contract, and to draw checks in payment for the work done in the 
name of the firm and deliver the same to the managing partner, 
who had ample authoiity to indorse the firm name. 

(76-331.23, J. A. Cx., June 2, 1913.) 



POST EXCHANGE: Contracting with the Government to furnish electric 
light. 

The post exchange at a certain military post operated for its 
own use a small electric plant and furnished light to several build- 
ings. It was desired to laiow whether the exchange could be paid for 
light furnished to officers pursuant to regulations. 

Held, that there was no reason why a post exchange might not 
enter into a contract with the Government for furnishing electric 
current for lighting the authorized allowance of quarters for officers 
on duty at the post. 

(40-041, J. A. G., June 19, 1913.) 



PUBLIC BUILDINGS: Restrictions on expenditures upon public buildings 
or military posts. 

The act of February 27, 1893 (27 Stat., 484), provides: 

" Hereafter no expenditures exceeding five hundred dollars shall 
be made upon any building or military post, or grounds about the 
same, without the approval of the Secretary of War for the same, 
upon detailed estimates of the Quartermaster's Department * * *." 

It was proposed to amend paragraph 718, Army Regulations, 
1910, reading " Nor will any expenditures exceeding $500 be made 
upon any building or grounds at any post, fort, arsenal, or depot 
without the approval of the Secretary of War and upon detailed esti- 
mates submitted to him," so as to exclude arsenals therefrom. It was 
further proposed that the Secretary of War should delegate authority 
to act in his name in the approval of expenditures upon public build- 
ings and grounds within certain limits of cost, to the heads of the 
staff departments. 

Held, that although the provision placing restrictions upon the 
amount to be expended upon buildings or military posts was con- 
tained in the part of the law appropriating for barracks and quar- 
ters under the control of the Quartermaster's Department, the Ian- 



232 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

giuige of the law was broad enough to include arsenals, and that the 
latter were subject to the restriction. 

Held^ further^ that the law implies the exercise of a discretion upon 
the part of the Secretary of War, and that he can not lawfully dele- 
gate such discretion to a subordinate officer. 

(52-241, J. A. G., June 16, 1913.) 



PUBLIC PROPERTY: Employment of experts on land values to assist a 
board of appraisers; appropriation chargeable. 

A board of appraisers had been appointed pursuant to an agree- 
'.nent to ascertain the value of the land and water rights on Lobos 
Creek, Cal., belonging to the Spring Valley Water Co. with a view 
to their purchase by the Government, and the assistance of experts 
on land values was desired to aid the board in arriving at a proper 
conclusion. 

Held., that the employment of experts to assist the board of 
appraisers was proper under the circumstances, and that the expenses 
.'-hould be charged to the appropriation of $100,000 '* for the pur- 
chase of land and acquirement of water rights on Lobos Creek, Cal.," 
etc., contained in the act of March 4, 1909 (35 Stat., 1003). 

(80-210, J. A. G., June 24, 1913.) 



PUBLIC WORKS: Disposal of the right to the temporary use of. 

Certain private parties desired the exclusive use of the United 
States Government's easterly breakwater in Chicago Harbor for a 
limited time for the purpose of holding a carnival, with permission 
to charge an entrance fee to all who might desire to enter thereon. 
Section 14 of the act of March 3, 1899 (30 Stat., 1152), provides 
among other things that — 

" The Secretary of War may, on the recommendation of the Chief 
of Engineers, grant permission for the temporary occupation or use 
of any of the aforementioned public works whenever in his judg- 
ment "^such occupation or use w^ill not be injurious to the public 
interest." 

The " aforementioned public works " refers back to an enumeration 
which includes those of the same character as the breakwater men- 
tioned. 

Held that the statute above quoted was ample authority for grant- 
ing the request for the temporary occupation of said breakwater. 

(80-816.1, J. A. G., June 18, 1913.) 



PURCHASE OF SUPPLIES: From regimental or company exchange; post 
exchange. 

Certain lumber was purchased by the commanding officer of a 
Signal Corps company from the Twenty-second Infantry Exchange 
while the two organizations were on duty on the Mexican border, 
for immediate use in the construction of a frame for a hospital tent 
to be used as a shelter for valuable instruments belonging to the 
United States. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 233 

Ileld^ that a regimental or company exchange, being organized 
along the same lines and for the same purposes as a regular post ex- 
change, although not recognized as a governmental agency by regu- 
lations, might properly be regarded as an extension of the post 
exchange, and that the bill in question might be settled the same as 
if the purchase had been made from a post exchange. 

(40-100, J. A. G., June 19, 1913.) 



STENOGRAPHIC REPORTER: Employment of an enlisted man. 

An enlisted man at a post was employed as stenographic reporter 
of a board appointed to examine into and report upon the mental 
status of a general prisoner, and he presented a bill for his services 
at the rate of 5 cents per 100 words. The act of August 24, 1913 
(37 Stat., 675), provides: 

" That hereafter enlisted men may be detailed to serve as steno- 
graphic reporters for general courts-martial, courts of inquiry, mili- 
tary commissions, and retiring boards, and while so serving shall re- 
ceive extra pay at the rate of not exceeding five cents for each one 
hundred words taken in shorthand and transcribed, such extra pay 
to be met from the annual appropriation for expenses of courts- 
martial, and so forth." 

Held^ that as the law only provided for employing enlisted men as 
stenographic reporters and paying extra compensation therefor when 
detailed to serve as reporters for general courts-martial, courts of 
inquiry, military commissions, and retiring boards, which designa- 
tions did not embrace a board of the character in question, there was 
no authority for paying for this extra service. 

(72-237, J. A. G., June 26, 1913.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of tlie .Judge Advocate General.) 

ABSENCE: Leave of, to per diem employees at the United States Military 
Academy; daily employees. 

The Secretary of War requested a decision whether, if regulations 
were promulgated by his department providing for a leave of absence 
with pay to employees at the Militar}'^ Academy when their compensa- 
tion is fixed either on a per annum, a per month, or a per diem basis, 
they could be paid for such absence as might be authorized by the 
regulations. 

Held^ that the granting of a leave of absence with pay to employ- 
ees whose compensation is fixed by law is a matter within the dis- 
cretion of the Secretary, but for those whom he is authorized to 
employ under lump-sum appropriations, the compensation and terms 
of employment are matters of agreement between the parties; that 
where the compensation is on a per annum basis, there is a degi^ee of 
permanency of employment which makes proper the exercise of 
executive discretion in agreeing with the employee for a leave of 
absence with pay, and the same is true with regard to those employed 
on a per diem basis where the rate of pay merely measures the com- 



234 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

pensation and does not make the employment one by the day, and 
where there is, therefore, the same degree of fixed compensation and 
permanency as in the case of pay on an annual basis. 

Held^ however, that where the employment is from day to day at 
a certain sum for a day's wages, although the time of employment is 
indefinite, it w^ould be foreign to the character of the employment to 
agree to a leave of absence with pay, and the granting of the same 
would be unauthorized. 

Held further^ that the granting of a leave of absence with pay to 
employees paid from lump-sum appropriations pursuant to such an 
agreement does not fall within the prohibition of section 4 of the 
act of March 4, 1913 (37 Stat., 790), providing that no part of any 
money therein or thereafter appropriated in lump sum should be 
available for the payment of personal services at a rate of compen- 
sation in excess of that paid for the same or similar services during 
the preceding fiscal year. 

(Comp. R. J. Tracewell, Apr. 17, 1913.) 



ALLOWANCES: Quarters, and heat and light; officer serving with troops. 

An officer of the Army serving with troops in China was furnished 
by the Quartermaster Corps with one bedroom in a hotel rented by 
the quartermaster for the purpose at a certain rate per month, in- 
cluding heat and light. The officer's rank entitled him to three rooms 
as quarters. 

Ileld^ that it is the duty of the Quartermaster Corps to provide 
quarters for officers of the Army on duty with troops, and that an 
officer on duty with troops is entitled only to such quarters in kind 
as may be provided for him, not exceeding the maximum allowance 
for his rank, whether the same be the number of rooms allowed for 
his rank, a single room, or a tent; and that if the same be heated and 
lighted at Government expense, he is not entitled to any additional 
allowance on that account. (18 Comp. Dec, 592.) 

(Asst. Comp. W. W. Warwick, June 3, 1913.) 



APPROPRIATIONS: Lump-sum; pajrment for personal services; transfer 
from position with specified compensation. 

Section 7 of the general deficiency act of August 26, 1912 (37 
Stat, 626), as amended by section 4 of the act of March 4, 1913 
(37 Stat., 790), reads: 

" That no part of any money contained herein or hereafter appro- 
priated in lump sum shall be available for the payment of personal 
services at a rate of compensation in exce&s of that paid for the same 
or similar services during the preceding fiscal year; nor shall any 
person employed at a specific salary be hereafter transferred and 
hereafter paid from a lump-sum appropriation a rate of compensa- 
tion greater than such specific salary, and the heads of departments 
shall cause this provision to be enforced. * * *." 

The question was submitted whether the latter part of said sec- 
tion 7 prohibits the appointment as special agent in the Indian 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 235 

Service at a salary of $2,000 per annum of a clerk in the Bureau of 
Indian Affairs holding? a position with a salary fixed by law at less 
than $2,000 per annum. 

The appropriation " General expenses, Indian Service, 1913," reads 
in part: 

" For pay of special agents at two thousand dollars per annum ; 
for traveling and incidental expenses of such special agents, includ- 
ing sleeping-car fare, and a per diem of three dollars in lieu of 
subsistence when actually employed on duty in the field or ordered to 
the seat of government; * * * f^j. p^^y ,^f employees not other- 
wise provided for; * * * $125,000." "(Act of Aiig. 24, 1912, 37 
Stat., 621.) 

Section 3 of the act of August 23, 1912 (37 Stat., 413), contains a 
similar provision to that found in section 7 of the general deficiency 
act of August 26, 1912, supra^ limited to the appropriations in lump 
sum contained in the act, and the compensation restricted to the 
rates paid during the fiscal year 1912. 

Ileld^ that in so far as the employment of special agents were con- 
cerned, the appropriation for general expenses of the Indian Serv- 
ice was not a lump-sum appropriation, and that the appointment 
of a clerk in the Bureau of Indian Affairs holding a .position with a 
salary fixed at less than $2,000 per annum, as a special agent at 
$2,000 per annum, was not forbidden by the law, since it would be 
a transfer to a position the compensation of which was fixed by law, 
and which therefore was a statutory pasition and not one paid from 
a lump-sum appropriation. Overruling 19 Comp. Dec, 613. 

The further question was submitted as to whether a clerk in the 
Bureau of Indian Affairs holding a statutory position could be 
transferred to a clerkship or a superintendency in the field service at 
an increased salary to be paid from a lump-sum appropriation, not 
in excess of that paid for similar services during the fiscal year 1912. 
The position held in the bureau at Washington had no relation or 
similarity so far as duties were concerned to the position in the field. 

11 eld 1 that a hmia fide transfer is not prohibited from a position at 
a specific salary to a position in the field paid from a lump-sum 
appropriation at a higher salary, the latter position having duties 
not in fact the same or similar to those of the former and the rate of 
compensation not being in excess of the rates specified in the first 
part of section 7 of the act of August 26, 1912, which fixes a limit to 
the pay from a lump sum appropriation for personal services; and 
that the transfer proposed could be made, subject to the limitations 
stated. 

(Comp. Geo. E. Downey, June 6, 1913.) 



GKiATIIITY: Six months' pay to representative of deceased soldier; designa- 
tion of beneficiary. 

The act of May 11, 1908 (35 Stat., 108), as amended, provides that 
upon the death of an officer or enlisted man in the active service 
from wounds or disease not the result of his own misconduct, an 
amount equal to six months' pay at the rate the soldier was receiv- 
ing at the time of his death shall be paid to his widow or to any other 



236 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

person previously designated by him. Said act furtlier provides 
that: 

'' The Secretary of War sliall establish regulations requiring each 
officer and enlisted man to designate the proper person to whom 
tliis amount shall be paid in case of his death * * *." 

Paragraph 1408, Army Eegulations, 1910, makes detailed provi- 
sion for the manner of designating the beneficiary as provided in 
said act, and specifically provides that: 

" Should an officer or enlisted man desire to change a beneficiary 
previously designated by him and to make a new designation, he 
may do this by filling up {)nd forw^arding to The Adjutant General 
of the Army another blank of the prescribed form, properly signed, 
witnessed, and attested." 

An enlisted man duly designated his mother as beneficiary. Sub- 
sequently in a letter purporting to be signed by him he stated : 
'" I want my remains sent to my mother * * * and my bene- 
ficiaries paid to my wife." This letter was delivered to the com- 
manding officer of his company several days after notification of 
the soldier's death. 

Held^ that while no departure from the regulations should be 
recognized, excepting where it is clear that any informal designation 
is entirely free from doubt, fraud, or mistake, in this case, if it satis- 
factorily appears that the communication expressing the desire that 
his wife should receive his death benefit was signed by the soldier, 
and that the person claiming to be his widow was lawfully such, 
payment of six months' gratuity might be made to her, subject to 
authorized deductions. • 

(Asst. Comp. W. W. Warwick, June 21, 1913.) 



HEAT AND LIGHT: Allowance to members of the Nurse Corps of the 
Navy; appropriation available. 

A voucher was presented for the payment for gas furnished to 
quarters leased by the Government and occupied by members of the 
Nurse Corps of the Navy. The rent for the quarters was paid 
from the appropriation for the pay of the Navy under the heading 
" Rent of quarters for members of the Nurse .Corps." The Nurse 
Corps (female) of the Navy was established by the act of May 13, 
1908 (35 Stat., 146), which provides that the superintendent, the 
chief nurse and nurses shall respectively receive " the same pay, 
allowances, emoluments and privileges as are now or may hereafter 
be provided by or in pursuance of law for the nurses of the Nurse 
Corps (female) of the Army." 

The Army Nurse Corps referred to w\as established by the act of 
February 2, 1901 (31 Stat., 753), wiiich fixes the pay and allowances 
of the superintendent and nurses of the Corps and provides, among 
other things, that " they shall be entitled to quarters." 

Paragraph 1061. Army Regulations, 1910, fixes the allowance of 
quarters for members of the Nurse Corps on detached service or on 
special duty in places where there are no public quarters available, 
at two rooms each, and provides that in hospitals or where buildings 
have been provided for them heat and light will be supplied as may 
be necessary. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 237 

The act of March 2, 1907 (34 Stat., 1167), makes provision for 
fiij-nishing heat and light " actually necessary for the authorized 
allowance of quarters for officers and enlisted men " of the Army, at 
the expense of the United States. 

Held., that the members of the Nurse Corps came within the 
meaning of the words " officers and enlisted men " in said act of 
March 2, 1907, and were entitled to have heat and light furnished for 
their authorized allowance of quarters, and that the voucher should 
be paid from the appropriation " Pay of the Navy," from which 
appropriation bills for heat and light furnished to officers were paid. 

(Asst. Comp. W. W. Warwick, June 4, 1913.) 



HEAT AND LIGHT: Allowance of, for officers' quarters; payment of com- 
muted value to officer; number of rooms occupied. 

An officer of the Navy whose rani? entitled him to four rooms as 
quarters, occupied quarters not owned by the Government and heated 
by the owner thereof. He had been furnished at Government ex- 
pense 4,000 cubic feet of gas for kitchen use, which was less than the 
total amount to which he was entitled as an officer of his rank for his 
authorized allowance of quarters. An officer of the Navy is entitled 
to the same allowances, with certain exceptions, as are provided by 
law and regulations for an officer of corresponding rank in the Army. 
The Army act of March 2, 1907 (34 Stat, 1167), provides: 

" Hereafter heat and light actually necessary for the authorized 
allowance of quarters for officers and enlisted men shall be furnished 
at the expense of the United States under such regulations as the 
Secretary of War may prescribe.'' 

Paragraph 1052, Army Regulations, 1910, provides that : 

" * * * Where an officer or noncommissioned officer is occupy- 
ing quarters other than public, not heated by a separate plant, or 
for which it is im.practicable to furnish fuel in kind, the Quarter- 
master's Department will pay the owner or authorized agent of such 
quarters for the heat at a rate of $4 a cord for the fuel allowance for 
the number of rooms to which the rank of the officer or noncommis- 
sioned officer entitles him as set forth in the table of allowances, para- 
graph 1060." 

Paragraph 1060 of said regulations prescribes a fuel allowance of 
34 cords of wood per liionth to an officer occupying four rooms as 
quarters during the season the officer in question was in such occu- 
pancy. Paragraph 1056 of said regidations provides that : 

" Merchantable oak wood is the standard ; the cord is 128 cubic 
feet. The scale of equivalents to govern in the issue and sale of fuel 
will be published from time to time in general orders." 

Held., that payment could be made to the officer of the commuted 
value of the fuel allowance computed according to the table of 
equivalents for heat furnished for the number of rooms actually 
occupied by him, not exceeding four, less the amount already paid 
for gas for kitchen use. See in this connection 14 Comp. Dec, 475. 

(Comp. R. J. Tracewell, Apr. 23, 1913.) 

A chief carpenter, United States Navy, entitled by law to the 
same allowances of heat and light for his authorized allowance of 



238 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

quarters as a second lieutenant in the Army, occupied, from May 
1 to October 21, 1907, two rooms as his private rented quarters, which 
were heated and lighted by gas not separately measured or charged 
for. The Army liegulations then in force provided: 

" Each officer * * * entitled to and occupying public quar- 
ters, or quarters other than public where gas * * * ig installed, 
will be allowed, at the expense of the United States, for each room 
to which his rank entitles him, for the period between September 1 
and April 30, 1,500 cubic feet of gas, * * * and from May 1 to 
August 31, 900 cubic feet of gas * * * per month. 

'' Where an officer * * * occupies quarters other than public, 
which are lighted by gas, * * * and the quantity supplied is not 
measured by separate meter readings, the Quartermaster's Depart- 
ment will make settlement with the owner or authorized agent for 
light for the number of rooms to which the rank of the officer 
* * * entitles him, in accordance with the prescribed allowance. 

" Where an officer * * * is occupying quarters other than 
public, not heated by a separate plant, or for which it is imprac- 
ticable to furnish fuel in kind, the Quartermaster's Department will 
pay the owner or authorized agent of such quarters for heat at the 
rate of $4 per cord for the fuel allowance for the number of rooms to 
which the rank of the officer * * * entitles him as set forth in 
the table of allowances, paragraph 1051." 

See paragraphs 1043 and 1063, Army Regulations, 1904, as amended 
by General Orders, War Department," No. 61, March 22, 1907. 

' Held^ That the effect of these regulations amounted to a practical 
commutation to officers of the maximum amounts of their heat and 
light allowances in cases where quarters other than public are occu- 
pied, and neither the heat nor light allowance therefor is separately 
measured. 

Held further^ That there was no objection to making the payment 
of the commuted value of these allowances directly to the officer. 
The claimant was therefore given the maximum allowance for heat 
and light for two rooms occupied by him for the period stated. 
See, however, 14 Comp. Dec, 35, 39, and id., 475. 

(Comp. R. J. Trace well, Apr. 24, 1913.) 

A lieutenant commander of the Navy, entitled to five rooms as 
quarters, was in receipt of commutation of quarters and occupied one 
room as quarters at the Army and Navy Club Building, Washington, 
D. C., which was neither heated nor lighted at Government expense, 
and neither heat nor light furnished therefor was separately 
measured. 

Ileld^ On revision of the action of the auditor, that the officer 
should be paid the maximum allowance for heat and light for one 
room during the period of such occupancy. In this connection see 
14 Comp. Dec, 475. 

(Comp. Geo. E. Downey, May 26, 1913.) 



PAY OF OFFICERS: Ten per cent increase for foreign service; detail to the 
Philippine Constabulary. 

The act of January 30, 1903 (32 Stat., 783), provides as follows: 

"That officei-s of the Army of the United States may be detailed 

for service as chief and assistant chiefs, the said assistant chiefs not 



DIGEST or OPINIONS OF THE JUDGE ADVOCATE GENERAL. 239 

to exceed in number four, of the Philippine Constabulary, and that 
during the continuance of such details the officer serving as chief shall 
have the rank, pay and allowances of brigadier general, and the 
officers serving as assistant chiefs shall have the rank, pay and allow- 
ances of colonel : Provided, That the difference between the pay and 
allowances of brigadier general and colonel, as herein provided, and 
the pay and allowances of the officers so detailed in the grades from 
which they are detailed shall be paid out of the Philippine treasury." 

It appeared to have been the practice since the passage of said act 
to pay officers of the Army detailed for duty as chief and assistant 
^chiefs of the Philippine Constabulary the ten per cent increase in 
pay authorized by law for foreign service as of their rank in the 
TJnited States Army, but the act had not received any formal con- 
struction by the accounting officers of the Government upon this par- 
ticular point. The Auditor for the War Department submitted to the 
comptroller his construction of said act, holding that officers detailed 
for service with the Philippine Constabulary should be paid the ten 
per cent increase of pay authorized for foreign service. 

Held, that Army officers so detailed and serving were performing 
civil and not military duties, and were therefore not entitled to 
receive from the United States the ten per cent increase upon the pay 
of the grades held by them in the United States Army as for foreign 
service. The Auditor's construction was therefore disapproved. 

(Asst. Comp. W. W. Warwick, June 23, 1913.) 



PURCHASE OF SUPPLIES: For the use of the branches of the Army- 
service in Washington; general supply committee; office of depot engi- 
neer, Washington, D. C. 

Section 4 of the act of June 17, 1910 (36 Stat., 531), provides: 

"That hereafter all supplies of fuel, ice, stationery, and other 
miscellaneous supplies for the executive departments and other Gov- 
ernment establishments in Washington, when the public exigencies 
do not require the immediate delivery of the article, shall be adver- 
tised and contracted for by the Secretary of the Treasury, instead of 
by the several departments and establishments, upon such days as he 
may designate. There shall be a general supply committee in lieu of 
the board provided for in section thirty-seven hundred and nine of 
the Revised Statutes as amended, composed of officers, one from each 
such department, designated by the head thereof, the duties of which 
committee shall be to make, under the direction of the said Secre- 
tary, an annual schedule of required miscellaneous supplies, to stand- 
ardize such supplies, eliminating all unnecessary grades and varieties, 
and to aid said Secretary in soliciting bids based upon formulas and 
specifications drawn up by such experts in the service of the Govern- 
ment as the committee may see fit to call upon, who shall render what- 
ever assistance they may require * * *." 

On submission of certain questions relatmg to the purchase of sup- 
plies for the use of the various branches of the Army situated in 
Washington, either for use in Washington or for shipment therefrom 
to the service outside : 

Held, That the War Department can lawfully enter into contracts 
for the delivery of supplies embraced in the schedule of the general 



240 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

supply committee, said supplies either to be delivered in Washington 
for consumption by some branch of the outside service located therein 
and not a part of the department proper or for storage and subse- 
quent reshipment to the outside service, independently of the act of 
June 17, 1910. 

Held further, That similar purchases of supplies may be made 
by a branch of the outside service located for convenience in Wash- 
ington but not a part of the department itself, for the use of said 
service in the District of Columbia or outside thereof, and that the 
local engineer officer of the engineer district composed of the States 
of Maryland and Virginia and the District of Columbia, who is 
located in Washington for convenience and not by law, might pur- 
chase supplies of the class or kind embraced in the schedule of the 
general supply committee without complying with the requirements 
of said act. 

(Comp. Geo. E. Downey, June 20, 1913.) 



QUARTERS: Commutation while awaiting transportation. 

An officer of the Anny on duty at a post with troops was directed 
to proceed to San Francisco at the proper time to take a transport 
leaving for Manila, P. I., and to take transportation thereon, for 
assignment to duty on arrival at Manila. Subsequently and before 
leaving his post he was granted a leave of absence extending beyond 
the time the transport was scheduled to sail. Before the expiration 
of his leave and after the date of the sailing of the transport his 
orders were amended so as to direct him to report to the command- 
ing officer at San Francisco, Cal., on or before a certain date for 
temporary duty and to proceed to the Philippine Islands on the 
first available transport after that date. His order also detached 
him from his former command. He reported January 7, was as- 
signed to duty with station at San Francisco, Cal., and embarked 
for Manila on the transport sailing March 15. 

Held, that if he was actually engaged in the public service during 
the period he was awaiting the sailing of the transport, he was esti- 
tled to commutation for quarters, provided no public quarters were 
available there for his use. 

(Asst. Comp. W. W. Warwick, June 7, 1913.) 



QUARTERS: Furnished in kind; authority to procure. 

A quartermaster sergeant presented a claim for reimbursement 
for the amount claimed to have been expended by him from his 
private funds for the hire of quarters for his use while temporarily 
stationed at Washington Barracks. Washington, D. C. He stated 
that there being no quarters available at the post, one room was 
leased for him, but that this lease was canceled necessitating the 
payment by him of rent from his private funds for the use of the 
room after the cancellation of the lease. There was no evidence 
.submitted showing that the soldier Avas authorized to procure private 
quarters for himself at Government expense. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 241 

Held, that as there was no authority shown for the hire by the 
soldier of private quarters for his use, the claim must be treated 
as one for commutation, and that commutation of quarters was for- 
bidden by the proviso contained in the appropriation " Barracks and 
quarters " in the Army appropriation act, which provides : 

" That no part of the moneys appropriated shall be paid for com- 
mutation of fuel or quarters to officers or enlisted men." (Act Aug. 
24. 1912, 37 Stat., 581.) 

The claim was therefore disallowed. 

(Asst. Comp. W. W. Warwick, June 20, 1913.) 



QTTAIITEBS: Furnished in kind; temporary duty. 

An officer while on duty at a post with troops was assigned to 
temporary duty in the office of the judge advocate of the division 
at the headquarters near by where there were no quarters available 
for him. He formally relinquished his right to quarters which he 
had previously occupied and requested that his family be allowed 
to retain the occupancy of the same during his assignment to the 
temporary duty. His family continued to occupy his quarters and 
the officer himself occupied them at night, going to and returning 
from his place of duty at his own expense. He claimed commutation 
of quarters while on this temporary duty. 

Held, that the officer having actually occupied public quarters 
during the entire period coverecl by the claim, either by right or by 
courtesy, he was not entitled to commutation therefor, and the fact 
that the quarters he occupied at his prior station were not needed 
for other officers was immaterial. 

Held further, that this officer's case was distinguished from that 
of Col. Glenn (19 Comp. Dec, 379) in that said officer's new sta- 
tion was so far removed from his old station that he could not share 
the quarters occupied by his family through the courtesy of the com- 
manding officer of the old station. 

(Asst. Comp. W. W. Warwick, June 13, 1913.) 



TIME: Computation of, for purposes of pay; pay for the 31st day of a 
month. 

An officer of the Medical Reserve Corps was called into active 
service pursuant to the act of April 23, 1908, for only one day, that 
being the 31st day of the month. Section 9 of sacid act (35 Stat., 
68), provides: 

" That officers of the Medical Reserve Corps when called upon 
active duty in the service of the United States, as provided in section 
eight of this act, shall be subject to the laws, regulations, and orders 
for the government of the Regular Army, and during the period 
of such service shall be entitled to the pay and allowances of iirst 
lieutenants of the Medical Corps * * *!" 

93668°— 17 16 



242 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Section 6 of the sundry civil appropriation act of June 30, 1906 
(34 Stat., 763), provides that: 

" Hereafter, where the compensation of any person in the service 
of the United States is annual or monthly tlie following rules for 
division of time and computation of pay for services rendered are 
herby established : Annual compensation shall be divided into twelve 
equal installments, one of which shall be the pay for each calendar 
month; and in making payments for a fractional part of a month 
one-thirtieth of one of such installments, or of a monthly compensa- 
tion, shall be the daily rate of pay. For the purpose of computing 
such compensation and for computing time for services rendered 
during a fractional part of a month in connection with annual or 
monthly compensation, each and every month shall be held to consist 
of thirty days, without regard to the actual number of days in any 
calendar month, thus excluding the thirty-first of any calendar 
month from the computation and treating February as if it actually 
had thirty days. Any person entering the service of the United States 
during a thirty-one day month and serving until the end thereof shall 
be entitled to pay for that month from the date of entry to the 
thirtieth day of said month, both days inclusive; and any person 
entering said service during the month of February and serving until 
the end thereof shall be entitled to one month's pay, less as many 
thirtieths thereof as there were days elapsed prior to date of entry : 
Provided^ That for one day's unauthorized absence on the thirty- 
first day of any calendar month one day's pay shall be forfeited." 

Held^ that although the employment of a person in the service of 
the United States at an annual or monthly compensation upon the 
31st day of a month was not forbidden by law, he could not legally 
be paid for such day, and that the officer in this case could not be 
paid for the 31st day of the month : 13 Comp. Dec, 75. 

(Asst. Comp. W.'W. Warwick, June 23, 1913.) 



TRAVELING EXPENSES: Hire of automobile for travel of an Army officer 
within a limited area. 

The Auditor for the War Department disallowed payments for 
services rendered April 28 and 29 and June 6 and 7, 1912, in fur- 
nishing automobile transportation to a department commander for 
the purpose of obtaining topographical and other information in the 
theater of Army maneuvers within a limited area, and at points in- 
accessible by common carrier, and where horses could not be provided 
and used without additional expense in excess of the amount charged 
for the automobiles. The officer was in a mileage status at the time 
the journeys were performed, but no mileage was paid for such 
journeys. 

Held^ that the officer being in a mileage status was entitled, for all 
travel performed by him under his orders, only to the mileage allowed 
by law, and payment for automobile hire was unauthorized. 

(Asst. Comp. W. W. Warwick, June 27, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 243 

OPIinOlTS OF THE ATTOKITEY GENERAL. 

(Digests prepared in the office of the Judge Advocate General.) 

EIGHT-HOTJE, LAW: Public-building contracts; appropriations made be- 
fore the passag'e of the act. 

The act of June 19, 1912, commonly known as the eight-hour law, 
contains at the end of section 2 the following qualification (37 Stat., 
138) : 

" Nothing in this act shall be construed to * * * apply to con- 
tracts which have been or may be entered into under the provisions 
of appropriation acts approved prior to the passage of this act." 

Held, that where Congress has fixed the limit of cost of a public 
building and made a partial appropriation therefor prior to June 19, 
1912, but subsequently thereto has increased the limit of cost, the 
contract for the erection of said building, whether entered into be- 
fore or after the time when said limit of cost was so increased, was 
excepted from the operation of section 1 of the eight-hour law of 
June 19, 1912 (37 Stat., 137). 

(30 Op. 150, Apr. 19,1913.) 



EMPLOYEES: Compensation act; jurisdiction of the Secretary of Labor. 

The act of May 30, 1908 (35 Stat., 556), providing for compensa- 
tion to employees for injuries received in the Government service 
under certain conditions, contains the provision that the final decision 
of claims arising under said act shall lie with the Secretary of Com- 
merce and Labor, under regulations prescribed by him. Section 3 of 
the act of March 4, 1912 (37 Stat., 737), creating the Department of 
Labor, provides that certain named " offices, bureaus, divisions, and 
other branches of the public service," then and theretofore under the 
jurisdiction of the Department of Commerce and Labor, and all that 
pertain to the same, including the Bureau of Labor and the office of 
the Commissioner of Labor, shall be transferred from the Depart- 
ment of Commerce and Labor to the Department of Labor, and shall 
thereafter remain under the jurisdiction and supervision of the 
last-named department. 

Held^ that final authority to determine claims arising under the 
workmen's compensation act of May 30, 1908, supra^ as amended, 
rests in the Secretary of Labor. 

(30 Op. 145, Apr. X 1913.) 



PUBLIC PROPERTY: Leasing of water power created by the construction 
of Government works. 

The United States erected a lock and dam on the Black Warrior 
River, Ala., and the question arose as to the right to lease the water 
power incidentally created thereby. 

Held^ that, assuming that the Federal Government had thB right 
to dispose of surplus water created by a dam erected by it in improv- 
ing the navigation of a navigable water of the United States within 
a State, it was manifest that, under the Constitution (Art. IV, sec. 3) , 
such right of disposal resided solely in Congress, and that the Sec- 
retary of War had no right, under existing legislation, to enter into 
an agreement for leasing water power created by said lock and dam. 

(30 Op. 154, Apr. 21, 1913.) 



244 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

DECISIONS OF THE COURTS. 

(Digests prepared in the office of tlie Judge Advocate General.) 

CONTRACTORS' BONDS: Suits on; jurisdiction of courts. 

The act of August 13, 1894 (28 Stat, 278), requires bonds from 
Government contractors for the protection of persons furnishing 
labor and material for the construction of public works upon which 
they may be engaged, giving a right of action upon the bond in favor 
of such persons. The act contains no direction respecting where the 
f^uit upon the bond of the contractor shall be brought or what court 
shall take jurisdiction. The act of February 24, 1905 (33 Stat., 811), 
amends the act of August 13, 1894, by reenactment, making many 
important changes and specifying that only one action shall be 
brought upon a bond and fixing the time when, and the court in 
which, said action shall be brought. An action was brought upon 
a contractor's bond executed on May 24, 1904, in the court authorized 
by section 5 of the act of August 13, 1894 (28 Stat., 280), regulating 
surety companies which execute bonds required by the laws of the 
United States. The surety company entered a plea to the jurisdic- 
tion of the court, contending that as the work done and materials 
furnished were done and furnished after the passage of the act of 
February 24, 1905, the action should have been commenced in the 
district pointed out in the latter act. A demurrer to the plea was 
sustained. 

Held^ that the court below was clearly right in upholding its 
jurisdiction, for to hold otherwise it would be necessary to construe 
the act of 1905 as retroactive in all cases Avhere work had been done 
after its passage on contracts executed prior to said act. 

{Title Guaranty and Surety Co. v. United States., U. S. Supreme 
Court, May 12, 1913.) 



INSURRECTION AND MARTIAL LAW: Constitutionality of executive 
acts after declaration of a State war. 

Refering to the insurrectionary conditions existing in the State 
of West Virginia, the Supreme Court of Appeals of that State laid 
down the following principles: 

1. The principles and conclusions of law announced in State ex 
rel. Mays v. Brown., Warden, and State ex rel. Nance v. Broion^, 
Warden (W. D. Bui. 17, p. 24, c. s.). having been reexamined, after 
thorough argument and consideration, are approved and reaffirmed. 

2. A state of war having been declared in any part of the State on 
an occasion of insurrection, the war power of the State in the form 
of military rule, defined by the usages of nations, prevails in the 
territory subject to the proclamation, excluding the civil poAvers as 
to offenses, if the executive so order, while the peace powers of gov- 
ernment under civil law prevail elsewhere. 

3. In such case the governor may cause to be apprehended, in or 
out of tlie military zone, all persons who shall willfully give aid, 
support, or information to the insurgents, and detain or imprison 
them, pending the suppression of the insurrection. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 245 

4. Sections 6, 7, 8, and 9, of chapter 14 of the code, authorizing 
such arrest and imprisonment, do not violate the provisions of the 
State and Federal constitutions, inhibiting deprivation of liberty 
without a trial by jury, and are constitutional and valid. 

5. Being so, such an arrest, detention, and imprisonment, by virtue 
of said statute, are effected by due process of law within the mean- 
ing of section 10 of Article III of the Constitution of this State 
and the fourteenth amendment to the Constitution of the Unitetl 
States. 

{In re Manj Jones ami others^ Mar. 21, 1913.) 



PUBLIC PROPERTY: Recovery of property alleged to belong to the United 
States. 

An action of replevin was brought for the recovery of certain 
soldiers' clothing siezed under the orders of officers of the United 
States Army. It was stipulated that certain of the property be- 
longed to the plaintiff, but that other of said property, " consisting 
of clothes and military outfit," had been furnished prior to said 
seizure by the United States to certain of its soldiers. Aside from 
this stipulation, the plaintiff' offered no evidence of title or right to 
possession of the property. 

Held^ that an admission that certain clothing was " furnished " by 
the United States to its soldiers, raised the presumption that the 
United States then had title thereto, and such title was not shown to 
have been divested merely because the clothing was so furnished. 

Held fwrtlier^ that the right of recaption is a part of the common 
law of the Philippine Archipelago, that it belongs to any citizen 
under proper restrictions, and that a fortiori it belongs to the sover- 
eign power and its agents. It was accordingly adjudged that the 
plaintiff should recover none of the property described in the stipu- 
lation as having been furnished by the United States to certain of 
its soldiers. 

( 7' an Te v. •/. Franklin Bell et al., Court of First Instance, District 
of Manila, Dec. 14, 1912.) 



BULLETIN 27. 

Bulletin 1 WAK DEPARTMENT, 

No. 27. J Washington, August 11, 1913. 

The following digest of opinions of the Judge Advocate General of 
the Army for the month of July, 1913, and of certain decisions of the 
Comptroller of the Treasury, and of an opinion of the Attorney Gen- 
eral, is published for the information of the service in general. 
[A. G. O.] 
By order of the Secretary of War : 

W. W. WOTHERSPOON, 
Major General.) Acting Chief of Staff. 
Official : 

H. O. S. HEISTAND, 

Adjuta7it General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

APPROPRIATIONS: Special; National and International Shooting Com- 
petition, Camp Perry, Ohio. 

An opinion was requested as to whether or not the cost of certain 
plumbing supplies required for use at the National and International 
Shooting Competition, 1913, at Camp Perry, Ohio, should be paid 
for from the special appropriation therefor contained in the Army 
appropriation act of March 2, 1913 (37 Stat., 711), or from the gen- 
eral appropriation for waters and sewers. 

Held, that the former appropriation was evidently intended to 
cover all proper expenses in connection with said International Rifle 
Shooting Competition, and that the cost of said plumbing supplies 
should be charged to said appropriation, and not to the general ap- 
propriation for waters and sewers. 

(5-500, J. A. G., July 5, 1913.) 



APPROPRIATIONS: Lump-sum; payment for personal services at in- 
creased rates. 

Section 7 of the act of August 26, 1912 (37 Stat., 626), as amended 
by section 4 of the act of March 4, 1913 (37 Stat., 790), prohibited 
the payment for personal services from the lump-smn appropriations 
mentioned in the former act at rates in excess of those paid for the 
same or similar services during the preceding fisctd year. The 
amendatory act further provided — 

"That this section shall not apply to mechanics, artisans, their 
helpers and assistants, laborers, or any other employees whose duties 
are of similar- character and required in carrying on the various 
manufacturing or constructing operations of the government." 

246 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 247 

It was desired to increase the compensation of the foreman in the 
sponging and shrinking plant at Philadelphia, Pa., beyond the 
amount he had received duiing the preceding fiscal year. He was 
described as a foreman of laborers but was also described as the only 
employee of his class. 

Held., that while under the eight-hour law of August 1, 1892 (27 
Stat., 340), a foreman of laborers was held not to come within the 
terms " laborers and mechanics " as used in said statute, the said law 
being penal in its nature (Dig. Op., J. A. G., 1912, p. 593, VII), a 
foreman within the meaning of section 4 of the act of March 4, 1913, 
should be classed with the particular employees whose work he is 
called upon to oversee, and that such an employee was excepted from 
the general provisions of section 7 of the act of August 26, 1912. 
Held, therefore, that the proposed increase could lawfully be made. 

(5-075, J. A. G., July 24, 1913.) 



BURIAL EXPENSES: General prisoners. 

On application for opinion as to whether the cost of burying a gen- 
eral prisoner could be paid from the appropriation " Contingencies 
of the Army," attention being invited to the opinion of this office of 
May 22, 1913 (W. D. Bui. No. 18, p. 4, c. s.), to the effect that there 
is no appropriation under the control of the War Department from 
which there could be paid the expenses of preparing the remains of a 
deceased general prisoner for shipment to his relatives, it was ex- 
plained that the opinion cited had reference to the expenses incident 
to the preparation of the remains of a general prisoner for shipment 
to his relatives, and did not extend to the necessary expenses of pre- 
paring the bod}^ for burial at Government expense. 

Held, that in the absence of a specific appropriation available for 
the purpose, and as the expense was incurred as an incident to the 
administration of the Army, the same was properly chargeable to 
the appropriation for " Contingencies of the Army," reference being 
made to the decision of the comptroller published in 11 Comptroller's 
Decisions, 789, 790. Held further, that the question was simply one 
of the decent and proper disposition of the remains of a general pris- 
oner, the possession of which is cast upon the Government ; and that 
the quartermaster in the interest of economy would be justified in 
making any reasonable arrangement with the relatives of the de- 
ceased whereby the cost of this service to the Government might be 
reduced. 

(30-824.2, J. A. G., July 29, 1913.) 



CIVIL SERVICE: Reduction or discharge of honorably discharg-ed soldiers 
for inefficiency; system of efficiency ratings. 

Section 4 of the legislative, executive, and judicial appropriation 
act of August 23, 1912 (37 Stat., 413), provides that— 

"The Civil Service Commission shall, subject to the approval of 
the President, establish a system of efficiency ratings for the classi- 
fied service in the several executive departments of the District of 
Columbia based upon records kept in each department and inde- 



248 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

pendent establishment with such frequency as to make them as 
nearly as possible records of fact. Such system shall provide a 
minimum rating of efficiency which must be maintained by an em- 
ployee before he may be promoted; it shall also provide a rating 
below which no employee may fall without being demoted; it shall 
further provide for a rating below which no employee may fall with- 
out being dismissed for inefficiency. All promotions, demotions, or 
dismissals shall be governed by provisions of the civil service rules. 
Copies of all recorcls of efficiency shall be furnished by the depart- 
ments and independent establishments to the Civil Service Commis- 
sion for record in accordance w ith the provisions of this section : 
Provided, That in the event of reductions being made in the force in 
any of the executive departments no honorably discharged soldier or 
sailor whose record in said department is rated good shall be dis- 
charged or dropped, or reduced in rank or salary." * * * 

Upon a request for an opinion as to whether the proviso regarding 
the discharge or reduction of honorably discharged soldiers, etc., 
was operative at that time or w ould go into operation only after the 
Civil Service Commission should have established, with the approval 
of the President, a system of efficiency ratings — 

Held, that the proviso regarding discharges and reductions follow- 
ing the provision for the establishment of a system of efficiency rat- 
ings, should be construed with reference to such provision with which 
it was associated and limited by the subject matter in the mind of 
Congress, and that so construed the proviso would become operative 
only when the system of efficiency ratings for the civil service in the 
several executive departments in the District of Columbia should be 
established in conformity with the provisions of the same section. 

a6-112.1, J. A. G., July 2, 1913.) 



CONTRACTS : Acceptance of work before completion according to contract 
and taking a bond; supplemental contract. 

A contract was made for the construction of certain roads, walks, 
gutters, etc., at the Presidio of San Francisco, Cal. When the work 
had been completed it was found that the specifications had not 
been complied with in a certain particular and that the pavement 
in certain sections was unsatisfactory, whether from the failure to 
so comply with the specifications or not did not appear. The con- 
tractor proposed by w^ay of compromise to relay the line surface of 
the imsatisfactory pavement with material prepared in accordance 
with the specifications and to g've a bond to relay other portions 
w^here the specifications had not been complied with, should they 
prove at any time within two years to be unsatisfactory. It was 
reported that the Government would not be injured by the arrange- 
ment. 

Held, that there was no authority for Avaiving the conditions of 
the contract, and for taking a bond to replace any portion of the 
work which did not prove satisfactory, without a consideration to 
the Government, but that if it was to the interest of the Government 
to accept the work, as finished, a supplemental contract might be 
entered into to accomplish the desired end. 

(76-420, J. A. G., July 2, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 249 

DETACHED SERVICE: Detail to the Philippine Constabulary; rank. 

The Army appropriation act of Aii^ist 24, 1912 (37 Stat., 571), 
provides generally that no officer holding a commission in the line 
of the Army below the rank of major who " shall not have been 
actually present for duty for at least two of the last preceding six 
years with a troop, battery, or company, of that branch of the Army 
in which he shall hold said commission," shall be detached or be 
permitted to remain detached from said organization for duty of 
any kind ; but it is further provided therein, as follows : 

" Nor shall anything in this proviso be held to apply to the de- 
tachment or detail of officers for duty * * * Jn the Philippine 
Constabulary until the first day of January, nineteen hundred and 
fourteen." 

The further provision was added : 

"And hereafter no officer holding a permanent commission m the 
Army with rank below that of major shall be detailed * * * 
as chief or assistant chief (director or assistant director) of the 
Philippine Constabulary and no other officers of the Army shall here- 
after be detailed for duty with the said constabulary, except as 
specifically provided by law." 

Held^ that the two provisions limiting details were distinct, the 
first prescribing a rule of eligibility based on service and which was 
not to become effective as to the Philippine Constabulary until 
January 1, 1914, and the other prescribing a rule of eligibility based 
upon rank, which became immediately effective. Held^ therefore^ 
that a captain of cavalry coidd not be detailed as chief of the Philip- 
pine Constabulary with the rank, pay, and allowances of a brigadier 
general. 

(92-412, J. A. G., July 3, 1913.) 



DISCHARGE: Of enlisted men; discharge without honor; finality. 

A soldier plead guilty in a State court to murder in the second 
degree and was sentenced to imprisonment in a State prison for 10 
years. He was thereupon discharged from the Army without honor. 
In the State prison he developed mania and mental aberration, but 
after an operation by which a depressed portion of his skull was 
raised, these symptoms disappeared and he became rational. The 
depression was the result of an accident which occured to him while 
in the service. He applied to have the discharge without honor 
substituted by an honorable discharge upon the ground of his mental 
aberration which was due to the skull depression. 

Held^ that it could not be assumed that if the Secretary of War 
had had all the facts before him that then appeared, his action 
would have been other than it was ; but held further^ that the Secre- 
tary having officially acted in the matter, his action became final and 
could not then be revoked. 

(28-128 J. A. G., July 2, 1913.) 



INDIANS: Support of; cutting and using hay from a military reservation. 

It was requested' on behalf of the Cree Indians that they be per- 
mitted to cut hay upon a military reservation for their use during 



250 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the coming winter, it being understood that the haj'^ was necessary 
for tlieir use and support. 

Ileld^ that while there was no authority of law for granting per- 
mission to Indians to cut hay from the reservation and take title 
to the same, such permission might be granted them to cut hay for 
their own use and support; that the Government sustained toward 
the Indians a different relation from that which it sustained to 
citizens in general; and that the use of the hay for their necessary 
support might, therefore, be regai'ded as a public use. 

(80-816.1, J. A. G., July 9, 1913.) 



INSTEirCTION: Schools at Army posts for children. 

Schools for officers are established according to Army Regula- 
tions " for the instruction of officers on the subjects pertaining to 
the performance of their active duties," and the current appropria- 
tion therefor reads " equipment of officer's schools, military posts," 
etc. The establishment of schools for enlisted men at Army posts is 
authorized by section 431, Revised Statutes. The equipment and 
maintenance of these schools are authorized from year to year in ap- 
propriation acts for the support of the Army. Upon request for 
opinion as to whether any appropriation of the Guartermaster Corps 
was available for the estbalishment, equipment, and maintenance of 
schools for children at Army posts — 

Heldj that the appropriations above named were limited to schools 
for officers and enlisted men, respectively, and that there was no law 
which would authorize the establishment and maintenance by the 
War Department of schools for children at Army posts. 

(80-304, J. A. G., July 21, 1913.) 



MEDICAL DEPARTMENT: Acting dental surgeon; tenure of office and 
discharge of. 

The act of March 3, 1911 (36 Stat., 1054), provides for a dental 
corps to be attached to the Medical Department of the Army, con- 
sisting of dental surgeons and acting dental surgeons, and further 
provides that — 

"All original appointments to the dental corps shall be as acting 
dental surgeons, who shall have the same official status, pay, and 
allowances as the contract dental surgeons now authorized by law. 
Acting dental surgeons who have served three years in a manner 
satisfactory to the Secretary of War shall be eligible for appointment 
as dental surgeons, and, aft«r passing in a satisfactory manner an 
examination which may be presci'ibed by the Secretary of War, may 
be commissioned with the rank of first lieutenant in the dental corps 
to fill the vacancies existing therein * * *." 

An acting dental surgeon was appointed November 15, 1912, and 
was thereaitei- absent from duty by reason of sickness not contracted 
in line of duty, and an opinion was desired as to whether or not his 
services could l)e dispensed with if deemed unsatisfactory before the 
term of three years had expired, at the end of which he would be 
eligible for appointment as a dental surgeon if his services were 
satisfactory. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 251 

Held^ that as the law provided that acting dental surgeons should 
have the same official status as contract dental surgeons had at the 
time of the passage of the act, and as such contract dental surgeons 
were employed for a term of three years under a contract which 
might be sooner annulled for certain reasons specified in the Army 
Kegulations, the appointment of acting dental surgeon as now pro- 
vided by law might be annulled or revoked in like manner, and that 
if the services of this particular acting dental surgeon were such as 
to bring him within any of the reasons for which the contract of a 
contract dental surgeon might have been annulled, his appointment 
might be revoked and his services dispensed with. 

(6-227.3, J. A. a, July 18, 1913.) 



MILITARY BESERVATIONS: Erection of a memorial cannon thereon. 

A chapter of the Daughters of the American Kevolution desired 
permission to erect a memorial, consisting of a cannon weighing 
about 2,000 pounds, suitably inscribed and mounted, upon a portion 
of a United States military reservation, for the purpose of com- 
memorating a historical event which took place near that spot during 
the American Revolution. The work would not interfere with the 
use of the reservation for military purposes. 

Held^ that, if such w^ere the object, the memorial would serve a 
public purpose and would not be in the nature of a permanent im- 
provement in which private rights might be acquired, and that per- 
mission might be granted for its erection and maintenance. It was 
advised^ however, that the design and inscription should be subject 
to the approval of the Chief of Engineers. 

(80-438, J. A. G., July 11, 1913.) 



MILITARY TELEGRAPH LINES: Charging- tolls on messages from other 
departments of the Government. 

The act of May 26, 1900 (31 Stat., 206), establishing the Washing- 
ton-Alaska military cable and telegraph system, provides: 

" For the purpose of connecting headquarters. Department of 
Alaska, at St. Michael, by military telegraph and cable lines with 
other military stations in Alaska * * * : Provided^ That com- 
mercial business may be done over these military lines under such 
conditions as may be deemed, by the Secretary of War, equitable 
and in the public interests, all receipts for such commercial business 
shall be accounted for and paid into the Treasury of the United 
States * * */' 

Section 2 of the act of October 1, 1890 (26 Stat., 653), provides 
that— 

" The Chief Signal Officer shall have charge, under the direction 
of the Secretary of War of * * * the construction, repair, and 
operation of military telegraph lines * * *." 

Held^ that the effect of the language of the above acts was to make 
said lines an instrumentality of the War Department, and that they 
can not be transferred to another department without legislative 
authority. Held further,, that there was nothing in the law that 



252 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

Avoiild prohibit the War Department from charging tolls on mes- 
sages from other departments, and transmitted over said system on 
official business, and the distribution of the tolls to the credit of the 
appropriations involved, on the principle that where supplies are 
furnished by one department or branch of the Government to an- 
other, the appropriations from which the supplies are furnished 
should be reimbursed by the department or branch of the Govern- 
ment to which they are furnished. 
(80-471, J. A. a, July 24, 1913.) 



NATIONAL CEMETERIES: Dedication of roads over. 

A petition was presented for the dedication or setting aside of a 
Ftrip of land along the north and west sides of a national cemetery 
at Nashville, Tenn., for the construction thereon of public streets. 
It appeared that the primary object in opening these streets was to 
make the adjoining properties more valuable for resident purposes. 

Section 6 of the act of July 5, 1884 (23 Stat., 104), provides that— 

" The Secretary of War shall have authority, in his discretion, to 
permit the extension of state, county, and territorial roads across 
military reservations; to permit the landing of ferries, the erection 
of bridges thereon; and permit cattle, sheep, or other stock animals 
to be driven across such reservation, whenever in his judgment the 
same can be done without injury to the reservation or inconvenience 
to the military forces stationed thereon." 

Tleld^ that even if the national cemetery could be regarded as a 
iPiilitary reservation within the meaning of said act, the use desired 
could not be considered as an extension of a state or county road 
through the reservation as contemplated by said act, and being in 
the nature of an easement in the land, the privilege could not be 
granted by means of a revocable license nor by means of a lease. 

(80-412, J. A. G., July 15, 1913.) 



NAVIGABLE WATERS: Structures over those lying- wholly within the' 
linaits of a State; construction before approval of plans. 

Section 9 of the act of March 3, 1899 (30 Stat., 1151), provides: 
" That it shall not be lawful to construct or commence the construc- 
tion of any bridge, dam, dike, or causeway over or in any port, road- 
stead, haven, harbor, canal, navigable river, or other navigable water 
of the United States until the consent of Congress to the building 
of such structures shall have been obtained and until the plans for 
the same shall have been submitted to and approved by the Chief of 
Engineers and by the Secretary of War: Provided., That such struc- 
tures may be built under authority of the legislature of a state across 
rivers and other waterways the navigable portions of which lie Avholly 
within the limits of a single state, provided the location and. plans 
thereof are submitted to and approved by the Chief of Engineers 
and by the Secretary of War before construction is commenced." 

The county authorities of a state submitted plans for the construc- 
tion of a bridge across a stream the navigable y)<)rtion of which was 
presumably entirely within the state, which plans were approved 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 253 

by the War Department. Thereafter said authorities submitted re- 
vised and entirely different plans and were informed that the same 
would be approved and the old plans canceled when bids for the con- 
struction of the bridge were actually received. The authorities, how- 
ever, proceeded to erect the bridge according to the revised plan, 
which had not been approved but which provided for a better bridge 
for navigation interests than the one contemplated in the approved 
plans. 

Held^ that the bridge was technically an unlawful structure, and 
that the department had no authority to waive objections to its un- 
lawful character. It was, however, recommended that the local engi- 
neer officer be informed that the Chief of Engineers and the Secretary 
of War are without authority to approve plans submitted after the 
construction has, as in this case, been completed; that inasmuch as 
the bridge was not constructed in accordance with plans approved 
as required by federal statutes, the department can not recognize 
it as a lawful structure; that while the department is without author- 
ity to make formal waiver of objections to the construction and main- 
tenance of this bridge, there is nevertheless no present apparent 
reason for the department to take any affirmative action with respect 
thereto, and that at present it is deemed neither necessary nor de- 
sirable to do so. 

(62-224, J. A. G., July 12, 1913.) 

Plans were submitted for dredging and for the construction of a 
wharf which was to be an extension of a stone pier built under a 
license from the state authorities in the navigable waters of the state 
of Massachusetts, but without the federal permit required by section 
3 of the act of July 13, 1892 (27 Stat., 110). The directors of the 
port of Boston, Mass., upon application and after published notice 
and hearing, licensed a company to build the pier and do the dredg- 
ing, plans for which were submitted for approval. The company, 
without apparent knowledge of the requirement of the federal stat- 
ute, had proceeded to the construction of about 330 feet of the 500- 
foot extension. The work was suspended pending approval of the 
plans submitted. 

Held^ That neither the original pier nor the work recently done 
could be recognized as a lawful structure, and that this character 
of the construction could be cured only by an act of Congress. It 
was therefore recommended as in the last preceding case. 

(62-352, J. A. G., July 14, 1913.) 



PRIVATE PROPERTY: Of deceased soldiers; disposition of, where the 
same is valueless. 
A private soldier died in the service leaving a small amount of 
clothing and toilet articles, and a council of administration was 
appointed to dispose of his personal effects. These were put up at 
auction twice and no bids were received. A relative was notified 
that she could have the effects of the soldier, but a letter sent to her 
address was returned undelivered, and neither the War Department 
nor the Auditor for the War Department had any further data 
as to the name or address of any relative or legal representative of 
said deceased soldier. 



254 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Held, that the effects having no salable value and remaining un- 
claimed by any legal representative after due notice given might be 
used by the military authorities for deserters and general pris- 
oners. 

(6-155, J. A. G., July 9, 1913.) 



PUBLIC PROPERTY: Sale of burial caskets to retired officers and to 
enlisted men of the Army. 

Authority was requested at an Army general hospital for the sale 
to retii'ed officers living in the vicinity and to enlisted men of the 
Army serving thereat of caskets or coffins for the burial of relatives 
who might die while such officers were in the vicinity of said post 
or such enlisted men serving thereat. 

Held, that there was no legislative authority for the purchase of 
burial caskets or coffins for sale to retired officers of the Army, or 
to enlisted men, and that without such authority the sale of said 
articles could not properly be made to such officers and enlisted men. 
W. D. Bui. No. 13, 1913, p. 12. 

(80-132, J. A. G., July 21, 1913.) 



PUBLIC PROPERTY: Use of, in commercial business. 

An automobile road was about to be completed in the Philippine 
Islands between certain points, and authority was requested to use 
Government transportation vehicles over the same in the commercial 
service of carrying passengers and freight, and charging therefor, 
covering the receipts into the Treasuiy of the United States. No 
commercial transportation line was regularly established between 
said points. 

Held, that the use of Government property for the purpose indi- 
cated would be a pro tanto disposition of the same and a diversion 
from the purposes of the appropriation from which such property 
had been purchased; and that such use of Government property 
would be unauthorized and illegal. (Dig. Op., J. A. G., 1912, p. 904, 
A3; W. D. Bui. No. 20, 1912, p. 15.) 

(80-137, J. A. G., July 18, 1913.) 



PURCHASE OF SUPPLIES: For Walter Reed General Hospital; contract 
with the Quartermaster Corps and the General Supply Committee. 

By contract with the Quartermaster Corps an ice company under- 
took to supply the Walter Reed General Hospital in Washington, 
D. C., with ice for the period from January 1 to June 30, 1913, at 
the rate of 33 cents per hundred pounds. The price named in the 
contract of the same company under the award of the General Sup- 
ply Committee made pursuant to section 4, act of June 17, 1910 (36 
Stat., 531), for supplying the executive departuients and other Gov- 
ernment establishments in Washington with ice, was 28 cents per 
hundred pounds. 

Held, that the Walter Reed General Hospital was a local branch 
or adjunct of the Army located in Washington as a matter of con- 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 255 

venience, and not a Government establishment in Washington within 
the purview of said statute, and that the contract with the Quarter- 
master Corps for supplying ice to said hospital was binding, and 
vouchers for ice delivered thereunder should be prepared at the price 
named in said contract. (Comp. Dec, June 20, 1913.) 
(14-120.1, J. A. G., July 22, 1913.) 



QUABTEBS: Certificate as to occupancy. 

On the question raised as to the proper certificate as to occupancy 
of quarters, reference being made to the decision of the Comptroller 
of the Treasury of May 26, 1913 (W. D. Bui. No. 23, p. 16, c. s.), 
where an apai-tment was occupied by three officers, the apartment 
containing three living rooms, three bedrooms, one bathroom, one 
long hallway, one dining room, one kitchen, one maid's room, one 
pantry, and one storeroom. 

Held^ that, assuming that each officer occupied exclusively one 
living room and one bedroom and that the other rooms were occu- 
pied in common for their joint use, where officers furnish their own 
quarters and bear their share for the rental of rooms occupied in 
common by them, the occupancy should be divided among the sev- 
eral officers, and that if the officer in question has occupied two rooms 
exclusively, and has used three other rooms of sufficient size to count 
as quarters in common with two other officers, he would be justified 
in certifying that he had occupied his full allowance of three rooms 
as quarters; but, in view of the fact that the auditor had indicated 
that only such rooms as are occupied by an officer exclusively shall be 
included in the certificate, an explanation or statement should accom- 
pany the certificate showing the exact condition of the occupancy in 
common with the other officers. 

(72-313, J. A. G., July 30, 1913.) 

Note. — This case, where certain officers leased an entire apart- 
ment, jointly occupying certain rooms, should be distinguished from 
the cases covered by the decisions of the assistant comptroller dated 
July 30, 1913, post, where the rooms referred to as occupied in com- 
mon with othere were the public rooms of a club or hotel, so that 
the same could not be considered as the quarters of the officers. 



RETIREMENT: Advanced grade; allowances. 

An officer of the United States Army with Civil War service was 
retired from active duty as a colonel, June 7, 1912, after more than 
46 years' service. On June 12, 1912, the Senate confirmed his nomi- 
nation for advancement in grade, and, on June 21 following, he was 
by the President placed upon the retired list with the rank of briga- 
dier general to date from June 7, the date of his retirement. He 
had personal effects to the amount allowed by Anny Regulations for 
a colonel transported to his home at public expense when he was 
retired, and he requested a decision as to whether or not he was 
entitled to transportation of baggage to the amount allowed a briga- 



256 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

dier general. The net of April 23, 1904 (33 Stat, 264), provided in 
part that — 

"Any officer of the Army below the grade of brigadier general who 
served with credit as an officer or as an enlisted man in the Regular 
or Volunteer forces during the Civil War prior to April ninth, 
eighteen hundred and sixty-five, otherwise than as a cadet, and 
whose name is borne on the official register of the Army, and who 
has heretofore been, or may hereafter be, retired on account of 
wounds or disability incident to the service, or on account of age 
or after forty years' service, may, in the discretion of the President, 
by and with the advice and consent of the Senate, be placed on the 
retired list of the Army with the rank and retired pay of one grade 
above that actually held by him at the time of retirement." 

Held., that said act conferred increased rank and- pay only, but 
conferred no other right, and that the officer was not entitled to the 
additional allowance of a brigadier general in the transportation of 
his personal effects to his home. 

(88-572, J. A. a, July 10, 1913.) 



TAXATION: Instrumentalities of the Government; tax on deed and fees 
for recording same and for recording transfer of property. 

An account was submitted for certain fees and taxes in connection 
with the transfer to the United States of a tract of land situated in 
Alexandria County, Va., said account consisting of a fee for record- 
ing the deed conveying the property to the United States, the State 
tax on said deed, and the fee of the commissioner of revenue for 
recording the transfer of the property on the property or assessment 
book of his district. 

Held, that the recording of the deed was a governmental act for 
the protection of the title to the United States, and that the pay- 
ment of the cost of the same could properly be made from the ap- 
propriation under which the land was acquired. Held further^ that 
the State tax on the deed and the fee for recording the transfer of 
the property on the property or assessment book of the district were 
not expenses of the United States incurred for the protection of 
its interests, but were State taxes levied for the purpose of revenue 
upon an instrumentality of the State not subject to taxation under 
State laws, and that said items could not legally be paid from any 
funds under the control of the War Department. 

(90-121, J. A. G., July 22, 1913.) 



TRANSPORTATION: Army supplies in American vessels. 

By act of April 28. 1904 (33 Stat., 518), it is provided that the 
transportation of supplies for the Army and Navy by sea shall be in 
vessels of the United States, or belonging to the United States, and 
no others, " unless the President shall find the rates of freight charges 
by said vessels are excessive and unreasonable, in which case con- 
tracts shall be made under the law as it now exists," etc.; and by 
section 3 of the act of April 29. 1908 (35 Stat., 70), it is provided 
that the " provisions of law restricting to vessels of the United 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 257 

States the transportation of passengers and merchandise directly or 
indirectly from one port of the United States to another port of the 
United States shall not be applicable to foreign vessels engaging in 
trade between the Philippine islands and the United States." 
' On the qnestion raised as to whether the later act modifies the 
earlier act so as to permit the shipment of engineer material re- 
quired for construction purposes to Manila in foreign vessels, 

Held., that the earlier act is a special statute regulating the ship- 
ment of military or naval supplies, while the later act is an amend- 
ment of the general law regulating the coast trade; that under the 
well-established rule of construction that repeals by implication 
are not favored, and that a later statute, general in its scope, will 
not be construed as an implied repeal of an earlier special statute 
unless there be a clear intention to do so, the provisions of the 
earlier act are in no way modified by the later act. 

(94-128, J. A. G., July 30, 1913.) 



TRANSPORTATION: Baggage allowance on change of station; cost of 
packing for shipment. 

The Auditor for the War Department suspended for further in- 
formation a voucher in a disbursing officer's account covering the 
payment of the regulation amount for packing and crating for ship- 
ment for a lieutenant colonel of his full authorized allowance of 
personal baggage to be transported at public expense on change of 
station. Paragraph 1151, Army Regulations, 1910, provides that — 

" The baggage to be transported at public expense, including mess 
chests and personal baggage, upon change of station Avill not exceed, 
wdien packed and crated the following gross weights ; * * * 

" Field officer, permanent change of station, 7,200 pounds. 

* * * :|: :I; * * 

" The maximum money allowance for packing and crating for each 
grade, exclusive of professional books and papers, will be as follows, 
and will not be exceeded. When less than the maximum allowance 
for each grade is transported, a proportionate decrease in the cost of 
packing and crating Avill be made. * * * 

" Field officer, permanent change of station, $43.20, * * *." 

The voucher suspended was for the maximum money allowance 
for packing and crating the maximum allowance of baggage for an 
officer in the grade mentioned, excluding professional books and 
papers, for which no charge was made. The auditor required evidence 
of the actual amount of baggage packed and crated, and the original 
bill for labor and materials furnished for that purpose. 

Held., that the regulation governing the allowance of personal bag- 
gage to be transported at public expense on change of station and the 
amount to be allowed for packing and crating the same for shipment 
Avas a limitation which the officer might not exceed either in the 
amount of baggage shipped or in the cost of packing and crating the 
same, and that only the actual amount of baggage shipped and not 
exceeding the allowance might be transported at public expense, and 
only the actual amount expended in packing and crating the same for 

93668°— 17 17 



258 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

sliipment, not exceeding the amount prescribed, might be paid for 
such purpose. It was therefore recomTnended that the officer should 
furnish a voucher showing the actual amount of baggage packed and 
crated, and that the same be supported by subvouehers covering the 
services performed and the materials furnished in packing and crat- 
ing the same for shipment. 

(94-^12, J. A. G., July 17, 1913.) 



TRANSPORTATION: Of Mexican prisoners; appropriation chargeable. 

An account was submi^ed for the transportation of 1 officer and 43 
enlisted men, and 237 Mexican prisoners from El Paso to Fort Bliss 
in the State of Texas. These prisoners had fled to the United States 
from a pursuing enemy in Mexico, where disturbed political condi- 
tions existed, and the United States authorities had interned them. 
The United States Government had not recognized a state of bel- 
ligerency in that country, although it had recognized that conditions 
of violence existed there. Held^ that under the circumstances, the ex- 
penses attendant upon caring for these prisoners must be met by the 
United States until such time as Mexico should make them good; 
held, further^ that the expense of transporting said prisoners was 
properly chargeable to the appropriation for contingencies of the 
Army, and that an account should be itemized and reported to the 
State Department, in order that reimbursement might be requested 
of the Mexican Government at the proper time. 

(94-342, J. A. G., July 9, 1913.) 



TRANSPORTATION: Sleeping-car accommodation for a private soldier 
where first-class rail transportation was provided. 

A depot quartermaster provided first-class transportation to a pri- 
vate soldier, not a noncommissioned officer, traveling alone under 
orders, no second-class transportation being available for the journey, 
and in connection therewith provided one upper berth in a tourist 
sleeping car for a part of the journey. Paragraph 1143, Army Resgu- 
lations, 1910, provides that — 

u * * * when the number of troops is too small to justify the 
hiring of tourist sleepers, second-class transportation with tourist 
sleeping-car accommodations on the same basis may be furnished. 
When the number is less than three, each man will be furnished with 
a berth." 

On May 14, 1912, the Quartermaster General of "the Army issued 
instruction which effectually prohibited the furnishing of sleeping- 
car accommodations, either standard or tourist, to enlisted men not 
noncommissioned officers, where first-class transportation is provided. 

Held., that these instructions of the Quartermaster General were not 
in conflict with the regulation, which did not forbid the furnishing of 
sleeping-car accommodations under such conditions, and that the 
depot quartermaster having provided such sleeping-car accommoda- 
tions contrary to said instructions, should refund the amount charged 
for the same in order that the account might be settled. 

(94-240, J. A. G., July 15, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 259 

TRAVELING EXPENSES: Army oflScers on civil business as members of 
a commission; appropriation chargeable. 

Joint resolution No. 40 of August 9, 1912 (37 Stat., 641), directed 
the Secretary of War to cause an investigation to be made of the 
claims of American citizens and others domiciled in the United 
States for certain injuries received within the boundaries of the 
United States from the operations of Federal or insurgent troops of 
Mexico in the course of the insurrection in that country during the 
year 1911. For the purpose of such investigation the resolution 
authorized the Secretary to appoint " a commission of three Army 
officers," which commission was given authority to subpoena wit- 
nesses, administer oaths, etc., and was required to report to Con- 
gress through the Secretary of War its findings of fact upon each 
claim, together with its conclusions as to the justice and equity 
thereof, and as to the proper amounts of compensation or indemnity 
to be paid. Subsequently the sum of $5,000 was appropriated by 
Congress " to carry out " the provisions of said resolution. 

Held^ that for travel performed under orders by members of said 
commission in connection with its business, only mileage and not 
actual traveling exj^enses could be paid to said officers, and that 
the accounts should be submitted to the Auditor for the War De- 
partment upon that basis. Held further^ that the mileage should be 
paid from the special appropriation made for the payment of the 
expenses of the commission. 

(94-210, J. A. G., July 23, 1913.) 



VOLUNTARY SERVICES: Payment for repairs of railroad siding belong- 
ing to the Government. 

A railroad side track belonging to the Government and located 
upon a Government military reservation was in bad condition, and 
the railroad company with whose lines it connected repaired the 
same without any request by, but without objection from, the mili- 
tary authorities. 

Held^ that as the work was voluntarily rendered, and as there was 
no contract either express or implied upon the part of the Govern- 
ment to pay for the said repairs, there was no authority for making 
payment for the services rendered. 

(76-030, J. A. G., July 15, 1913.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

APPROPRIATIONS: Heating and plumbing fixtures; Public buildings. 

By act of August 24, 1912 (37 Stat., 582), the sum of $10,000 from 
the appropriation for " Barracks and quarters " was authorized to be 
expended for the construction of a building for instruction purposes 
for the post of Fort Leavenworth, Kans. ; and by act of March 4, 1913 
(37 Stat., 865), an additional amount of $5,000 was appropriated for 



260 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the same purpose. On the question raised as to whether the cost of 
instaHation of phimbing and heating apparatus and electric wiring in 
such building is a proper charge against the appropriation for the 
construction of the building or whether the plumbing should be 
charged to the appropriation " Water and sew^ers at military posts " 
and the heating apparatus and electric wiring fixtures to the appro- 
priation " Regular supplies," as is the case with respect to other build- 
ings provided for under the appropriation " Barracks and quarters," 
the Comptroller referred to the item under the heading " Regular 
supplies" (act of March 2, 1913, 37 Stat., 712), providing "for fur- 
nishing heat and light for the authorized allowance of quarters for 
officers and enlisted men * * * .^^^^ f^j. recruits, guards, hos- 
pitals, storehouses, offices, * * * " and to the item in same act 
under the heading " Water and sewers at military posts," providing 
" for the installation and extension of plumbing w ithin buildings 
inhere the sam£ is 7iot speHfcally provided for Iti other appropria- 
tions, * * * " and held as follows : 

{a) That as a general rule all those parts of a building Avhich are 
in their nature fixtures and which would be included in a transfer of 
the ownership of the building are regarded as a part of the building 
itself; and the cost of such fixtures, if placed therein at the time the 
building is in process of erection, is payable from the appropriation 
for the erection of the building in the absence of some other appro- 
priation making more specific provisions therefor. (See MS. Comp. 
Dec. 561, dated Feb. 28, 1899; 18 Comp. Dec, 612.) 

(5) That the appropriation for "Water and sewers at military 
posts " provides expressly that the cost of installation of plumbing in 
buildings shall be paid therefrom unless the same is specifically pro- 
vided for in other appropriations; and that as the appropriation for 
the building does not provide specifically for the installation of 
plumbing therein, the cost of plumbing in said building should be 
charged to the appropriation for " Water and sewers." 

{c) As to the installation of the heating apparatus and electric wir- 
ing and fixtures, there being no appropriation making more specific 
provision therefor than the appropriation for the construction of the 
building, the cost of their installation should be charged to the appro- 
priation for the construction of the building. 

(Asst. Comp. W. W. Warwick, July 29, 1913.) 



CONTRACTS: Delays in performance. 

A contract with the Government provided for the improvement of 
navigation by dredging and rock removal within an area in the Har- 
lem River, New York. The specifications attached to and forming a 
part of the contract contained the statement that ajjproximately 1,650 
cubic yards of ledge rock were required to be lemoved. In the prose- 
cution of the work it was necessary to remove a total of 2,914.7 cubic 
yards of such material in order to excavate to the required depth, the 
difference causing a delay of four and two-thirds months beyond the 
time for the couipletion of the work. The discrepancy between the 
amount of ledge rock named in the specifications and the amount 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 261 

necessary to remove was caused by the fact that the rock surJiace was 
very irreguhir and oveHaid with hard material so that it was impos- 
sible to determine its surface by the ordinary methods of rod boring. 
The quantities given in the specifications were only approximate and 
were expressly stated to be but an estimate, and the contract and 
specifications contained a provision that bidders were expected to ex- 
amine the work and to decide for themselves as to its character and 
make their bids accordingly, as the United States did not guarantee 
the accuracy of the description. Another paragraph of the specifi- 
cations provided that — 

" No allowance Avill be made for the failure of a bidder or of a con- 
tractor to estimate correctly the difficulties attending the execution of 
the work." 

It was further provided that no charge for inspection or superin- 
tendence would be made, after the expiration of the contract for time 
lost — 

" On account of the unusual freshets, ice, rainfall^ or other abnor- 
mal forces or violence of the elements * * * or other unforsee- 
able cause of delay arising through no fault of the contractor and 
which actually prevented such contractor from commencing or 
completing the Avork * * * -within the period required by the 
contract." 

Held^ that a statement of the approximate quantities of material 
set out in the specifications was distinctly not a warranty but at most 
a mere estimate {Grief en v. United States^ 43 Ct. Cls., 107), and the 
fact that there was more ledge rock to remove than either the con- 
tractor or the Government had expected was not an unforseeable 
cause of delay within the meaning of the contract. Held^ therefore, 
that the contractor should be charged with all the cost of inspection, 
etc., for delay beyond time for completion occasioned by the necessity 
for the removal of the quantity of ledge rock above the amount men- 
tioned in the specifications. 

(Asst. Comp. W. W. Warwick, June 30, 1913.) 



CONTRACTS: Where Government assists contractor who is not in default. 

A contract for levee work provided that the price per yard should 
include all costs for clearing the foundation. After clearing the 
foundation the work was delayed by excessive rains; and in order 
to expedite the work in view of approaching floods and without 
awaiting any default or delinquency on the part of the contractor, 
the contracting officer, with the assent of the contractor, placed a 
quantity of materials on the site cleared by the contractor at a cost 
of $357.27 less than the amount which the contractor would have 
received for the same quantity of materials under the terms of the 
contract. Held, that the contract, as modified by the contractor's 
agreement that the Government should aid in the work, should be 
interpreted so as to give him the contract rate per yard for all 
materials placed in the work, deducting therefrom the cost to the 
Government for the work done by it. 

(Asst. Comp. W. W. Warwick, July 7, 1913.) 



262 DIGEST OF OPINIONS OF THE JUI>GE ADVOCATE GENERAL. 

MILITIA: Pay of retired officers and enlisted men of the Army serving in 
militia organizations. 

On questions submitted as to the pay and allowances of retired 
officers and enlisted men of the Army serving in the Organized 
Militia from appropriations by Congress for the militia, held that 
the appropriations for the pay and allowances of officers and men 
of the Organized Militia are not available for the payment of retired 
officers and enlisted men of the Regular Army serving in said 
organization; that the purpose of the appropriation for the militia 
is to have a force of organized militia " constantly prepared to 
take the field at any time at the call of the President, and all drills, 
camps, and maneuvers are for the purpose of keeping them in a 
condition ready to meet the requirements " ; that the service of retired 
officers of the Army may be availed of only under certain conditions, 
find retired enlisted men can not be called upon for service of any 
kind; and that it can not be said that the appropriations made by 
Congress for the purpose of the "maintenance of the Organized 
Militia ready for war," were intended to cover the pay and allow- 
ances of retired officers and enlisted men of the Army who, because 
of their age or physical condition or the provisions of existing law, 
are not available for active service. IleJd^ therefore, that the "pay 
and allowances of retired officers and enlisted men of the Regular 
Army who are members of the Organized Militia for participation 
in camps of instruction, etc., should be only the pay received on the 
retired list of the Regular Army and from the api:)ropriations made 
therefor." 

(Asst. Comp. W. W. Warwick, July 30, 1913.) 



PURCHASE OF SUPPLIES: General Supply Committee; office of the Chief 
of Staff of the Army. 

Payment had been made by a disbursing officer for office supplies 
bought in the open market for use in the office of the Chief of Staff, 
United States Army, and the Auditor for the War Department had 
disallowed credit for the payment upon the ground that said supplies 
were provided for in the general schedule of supplies of the General 
Supply Committee, and should have been purchased thereunder in 
accordance with section 4 of the act of June 17, 1910 (36 Stat., 531). 

Ileld^ that the office of Chief of Staff was not an office or bureau 
of the executive department in Washington known as the War De- 
partment, but was a part of the Army, and that said act has no 
npplication to said office. The credit for the items disallowed was 
therefore allowed. 

(Asst. Comp. W. W. Warwick, July 5, 1913.) 



PURCHASE OF SUPPLIES: For the postal service outside of Washington. 
On application by the Postmaster General for a decision as to 
whether or not supplies might be purchased for the postal service 
independently of the act of June 17, 1910 (3G Stat., 531), for the use 
of said service in Washington or for delivery and storage therein and 
subsequent reshipment to post offices and the postal service outside. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 263 

Held,, that the act of June 17, 1910, was Limited in its scope and 
application to " the executive departments and other Government 
establishments in Washington," and, therefore, had no application 
to the postal service, which was not an executive department or 
other Government establishment in Washington, but was a field 
service, and that the Postmaster General could lawfully contract 
for supplies for said service of the same or similar kind to the 
standardized supplies included in the schedule of the General Supply 
('ommittee, for delivery in Washington either for consumption 
therein by the postal service or for storage and subsequent reship- 
ment to the post offices and other postal service agencies outside, 
independently of the provisions of said act. 

(Comp. George E. Downey, July 7, 1913.) 



QUARTERS: Heat and light. 

Where certain officers presented vouchers for the commuted value 
of the maximum allowance for heat and light for the authorized 
number of rooms, accompanied by certificates showing that they 
actually occupied less than the authorized number, held^ that the law 
authorizes payment for only heat and light actually necessary for 
the quarters occupied by an officer (act of Mar. 2, 1907, 34 Stat., 1167) ; 
that the regulations of the Secretary of War have prescribed the 
maximum allowance necessary to heat and light quarters consisting 
of one room, two rooms, three rooms, etc., respectively; that it is 
not necessary to heat and light quarters not occupied ; and that if the 
officer " actually and exclusively occupied as quarters two rooms in 
addition to bath and to rooms used in common with others, such as 
parlor, dniing room, kitchen, lobby, etc., and those facts are estab- 
lished by compentent evidence, he is entitled to the allowance pre- 
scribed in the regulations for two rooms, and no more." (19 Comp. 
Dec, 675.) 

(Asst. Comp. W. W. Warwick, July 30, 1913.) 

Also held., in the case of an officer whose rank entitled him to seven 
rooms while his certificate showed that he actually occupied two 
rooms only, as follows : 

" The law authorizes only the heat and light actually necessary 
for the officer's quarters. No heat or light is necessary for quarters 
not occupied. The regulations prescribe the quantity of fuel and 
illuminating supplies necessary to heat and light quarters consisting 
of one room, two rooms, three rooms, etc., respectively. Hence, when 
an officer occupies two rooms as quarters and it is practicable to 
furnish heat and light therefor in kind, he is entitled to the heat and 
light actually used not to exceed the allowance that the Secretary of 
AVar has prescribed as the maximum quantity necessary for such 
quarters. And if it is impracticable to furnish heat and light in 
kind for two rooms occupied as quarters, it will be assumed, in the 
absence of better evidence, that the officer required the full quantity 
of heat and light prescribed in the regulations as necessary for 
quarters consisting of two rooms, and the value of said allowance will 
be paid accordingly." 

(Asst. Comp. W. W. Warwick, July 30, 1913.) 



264 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

TRANSPORTATION: Baggage of officers traveling on a mileage basis. 

On appeal from a decision of the Auditor for the War Depart- 
ment disallowing, intei' alia^ a claim of an officer serving as military 
attache abroad for reimbursement for the amount paid by him for 
the transportation of his baggage, while traveling on official business 
on a mileage basis, held^ that mileage is an allowance in the nature 
of a reimbursement for the expenses of travel incurred by an officer 
traveling under competent orders on public business ; that the mileage 
law (Act of June 12, 1906, 34 Stat., 246) expressly provides '^That 
hereafter officers * * * when traveling under competent orders 
without troops * * * shall he paid 7 cents per Tn'de and no more 
* * * " ; that the mileage so authorized is intended to and does cover 
every ordinary and reasonable expense of travel, including any 
cost of transportation of personal baggage, such as an officer usually 
traveling in a mileage status usually carries with him ; that to allow 
the claim in question would be to give the officer more than 7 cents a 
mile, contrary to the provision of the statute; and that the regula- 
tions authorizing such allowance (pars. 1137 and 1153, Eegidations 
1910) are directly contrary to the statute and without legal force or 
effect. 

(Asst. Comp. W. W. Warwick, July 29, 1913.) 



TRANSPORTATION: Hire Of automobiles; use of by the Secretary of 
War and Army officers for field inspection. 

Vouchers were presented for automobile service furnished to the 
Quartermaster's Department in connection with a field inspection at 
Pole Mountain, Wyo., by the Secretary of War and a party of Army 
officers accompanying him, under authority of a telegram from the 
Quartermaster General dated August 28, 1912. The vouchers had 
been paid from the appropriation for the transportation of the 
Army. The Army appropriation act of August 24, 1912 (37 Stat., 
583), under head of " Transportation of the Army and its supplies," 
provides : 

" For the purchase, hire, operation, maintenance and repair of such 
harness, wagons, carts, drays, and other vehicles as are required for 
the transportation of troops and supplies, and for official, military, 
and garrison purposes." 

Said provision first appeared in the Army appropriation act of 
March 3, 1911 (36 Stat., 1051), for the fiscal year 1912, and in ad- 
dition said act contained the following provision : 

" That hereafter in the performance of their official and military 
duties the officers of the Army are authorized, under such regulations 
as may be established by the Secretary of War, to use the means of 
transportation herein provided for." 

Ileld^ that the law provided for the hiring of the vehicles in ques- 
tion, and permitted their use by Army officers for official and military 
purposes, and that the fact that the Secretary of War also rode in 
the automobiles did not affect the legality of the transaction. Held^ 
therefore, that the vouchers might be paid. 

The question of whether the Secretary of War could be considered 
as a part of the Army while engaged on this duty was not decided, 
as a decision upon that point was not considered necessary: 

(Asst. Comp. W. W. Warwick, July 18, 1913.) 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 265 

TRANSPORTATION: Land-grant deductions; basis of deduction. 

A railway company appealed from a decision of the Auditor for 
the War Department disallowing a certain amount of its bill for 
transportation of coal from Eoslyn, AVash., to Fort Stevens, Oreg., 
on account of land-grant deduction, claiming that the Auditor erred 
in including certain land-grant mileage tAvic^. 

In the division of the through rate of $2.80 per ton for said ship- 
ment between said points, $2 per ton accrued between Roslyn, Wash., 
and Willbridge, Oreg., to the Northern Pacific Railway, which was 
subject to the land-grant deduction on the basis of land-grant mile- 
age between said points, and that 80 cents per ton accrued between 
Willbridge and Fort Stevens, Oreg., to the claimant company, which 
was subject to land-grant decluction on the basis of land-grant mile- 
age between said points on account of using the land-grant mileage 
of the Northern Pacific Railway Co. 

IJeld^ that where through transportation is authorized by a route 
which requires the double use of the same track, each use of which 
is a different part of the through service and for which a separate 
division of the through rate is authorized, land-grant deduction 
should be made on the ratio of the land-gi'ant mileage to the total 
mileage involved in each separate division of the through rate, though 
the same mileage is used as parts of different divisions. (18 Comp. 
Dec, 309.) The Auditor's disallowance was sustained. 

(Comp. Geo. E. Downey, July 24, 1913.) 



OPINION OF THE ATTORNEY GENERAL. 

(Digest prepared in the office of tlie Judge Advocate Generaf.) 

PROMOTIONS: Of Army officers by seniority. 

The act of October 1, 1890 (26 Stat., 562), provides: 

" That hereafter promotion to every grade in the Army below the 
rank of brigadier general, throughout each arm, corps, or depart- 
ment of the service shall, subject to the examination hereinafter pro- 
vided for, be made according to seniority in the next lower grade 
of that arm, corps, or department : Provided^ That in the line of the 
Army all officers now above the grade of second lieutenant shall, 
subject to such examination, be entitled to promotion in accordance 
with existing laws and regulations." 

Section 3 of the same act authorizes the President to prescribe a 
system of examination of all officers of the Army below the rank of 
major to determine their fitness for promotion, and provides that 
if any officer fails to pass a satisfactory examination and is reported 
unfit for promotion, the officer next below him in rank having passed 
said examination shall receive the promotion. 

The President submitted, for opinion, the questions of whether 
the provisions of the act of October 1, 1890, that promotions in the 
Army below the rank of brigadier general shall, subject to the ex- 
amination required therefor, be made according to seniority in next 
lower grade, made it mandatory upon the President to appoint the 
senior officer in the grade of major to a vacancy in the grade of 
lieutenant colonel, if, in his opinion, the record of the officer indicated 



26G DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

that he was disqualified for the promotion, and he could not be elimi- 
nated either through the agency of a retiring board or a court- 
martial; and whether if such statute be so construed it would not 
be an unauthorized encroachment upon the appointing power of the 
President, and should for that reason be held to be advisory in 
character. 

Held., that by section 2, Article II, Constitution of the United 
States, which deals with the power of the President to make ap- 
])ointments, when Congress creates an office, but does not vest the 
appointment thereto in any of the persons specified in said section, 
the Constitution operates propria vigore and immediately casts upon 
the President by and with the advice and consent of the Senate the 
duty of appointing thereto ; that the power of appointment involves 
the exercise of a discretion not to be entirely controlled by Congress ; 
and that the fact that Congress is given the power by the Constitu- 
tion " to make rules for the government and regulation of the land 
and naval forces " does not enable it to control the President's dis- 
cretion in respect of those appointments which the Constitution re- 
quires him to make. Held further^ that the act of October 1, 1890, 
did not make it obligatory upon the President to promote the senior 
officer in the grade of major when a vacancy existed in the grade of 
lieutenant colonel, if, in his opinion, the record of the officer had 
been such as to indicate that he was disqualified for the promotion. 

(Atty. Gen. J. C. McKeynolds, June 23, 1913.) 



BULLETIN 29. 

Bulletin 1 WAR DEPARTMENT, 

No. 29. J Washington, September 10^ 1913. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of August, 1913, including one opinion 
for July, 1913, not heretofore published, and of certain decisions of 
the Comptroller of the Treasury and of opinions of the Attorney 
Greneral and of one court decision, is published for the information 
of the service in general. 
[2054671 A.— A. G. O.] 

By order or the Secretary or War : 

LEONARD WOOD, 
Major General^ Chief of Staff. 
Official : 

H. O. S. HEISTAND, 

Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL, 

ABSENCE ON SICK LEAVE: Status of officer on sick leave without any 
regular station. 

An officer- of the Medical Reserve Corps who was ill with heart 
trouble was transferred from Benicia Arsenal, Cal., to the Letter- 
man General Hospital. It became necessary to replace him at the 
arsenal by another medical officer and, owing to the limited accom- 
modations for officers at that station, to relieve him from further 
duty to make room for the family of his successor. No orders were 
issued assigning him to a new station. He requested that, unless the 
order relieving him from duty at the arsenal entitled him to commu- 
tation of quarters, thereafter quarters be provided in San Francisco. 
for his family, which had been occupying the quarters assigned to 
him at Benicia Arsenal; that his household goods and two private 
mounts at Benicia Arsenal be shipped by the quartermaster to the 
Letterman General Hospital ; and that some quartermaster in the 
neighborhood be authorized to issue forage for said mounts after 
their arrival. 

Held., that this officer's status was that of an officer who had been 
relieved from duty at his station Mdthout an assignment to a new 
station, and was analogous to that of an officer on sick leave with- 
out any regular station, and that hence he was not entitled to com- 
mutation of quarters; that there was no authority of law or regu- 
lations under which shipment of his household goods and private 
mounts could be made as requested, nor could forage be furnished 
under his present status; and that in view of the fact that he had 

267 



268 DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 

been or sick report since March 5, 1913, that his disability was re- 
garded as permanent, and that at hist report he was not able to 
leave the hospital, no order could properly be issued assigning him 
to a new station for the purpose of giving hiin the allowances re- 
quested. 

(72-333, J. A. G., Aug. 0, 1913.) 



BAGGAGE : Change of station allowance of, of officer assigned to his regi- 
ment prior to the expiration of the four- year period of his detail with 
higher rank in a staff department. 

A first lieutenant of the Coast Artillery Corps was detailed for a 
period of four years as captain in the Ordnance Department. He 
was relieved and assigned to a company of the Coast Artillery Corps 
to take effect on a date prior to the expiration of the four-year 
period of his detail. The question arose as to Avhether he was 
entitled to the change of station allow^ance of baggage of a captain 
or of a first lieutenant upon his personal property shipped by the 
Quartermaster's Department on the date said assignment took effect. 

Ilehl^ that he resumed his rank of a first lieutenant on that date 
and would be entitled to the authorized change of station allowance 
of baggage of a first lieutenant only. 

(94-233, J. A. G., Aug. 16, 1913.) 



COMPTROLLER OF THE TREASURY: Final authority in the decision 
of all questions on accounting. 

The question raised was whether the Comptroller in construing a 
statute authorizing the expenditure of public funds could annul 
Army regidations made in pursuance of the express terms of an act 
of Congress, or, in other words, Avhether his authority was sufficient 
to nullify an existing and public regulation of the President of the 
United States for the guidance and control of the Army. It was 
urged that under such a situation any officer, although he might 
observe regulations with exactness, might find himself ruined finan- 
cially through some such decision when in emergency he had large 
affairs to negotiate. 

Ileld^ that it is Avell settled that the Comptroller as the law officer 
of the accounting officers is vested by law with final authority to 
decide all questions upon accounting properly submitted to him, 
and to construe all statutes upon the authority of which disburse- 
ments of public funds ai-e made, and that appeal from action taken 
by him in matters that fall under his jurisdiction lies only to the 
courts; that as he is the depository of final authority to construe 
all statutes imder w^hich disbursements of public funds are made, 
it necessarily follows that if his construction of such a statute should 
bring it into conflict with a departmental regulation, said construc- 
tion would nullify the regulation. 

(72-311, J. A. G., Aug. 23, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 269 

CONTRACTS : Claim for services rendered in excess of what can be shown 
under the contract. 

A contract for supplying electric current to the United States 
required the contracting company to furnish, maintain, and read 
watt meters, and provided that " in case of failure of any meter 
during any month the monthly consumption " for that month " will 
be found by adding the consumption of the previous month to the 
consumption for the following month, dividing the sum by two"; 
and that '" all meters will be calibrated at reasonable intervals to in- 
sure their accuracy." The company claimed payment for current 
supposed to have been used in excess of that shown by the meter 
readings between January, 1912, and the last of February, 1913, 
when the meter was rewired and calibrated, it appearing from a 
comparison of the amount of the current used before and after the 
correction of the meter with the amount of work done that the meter 
registered only about 64 per cent of the current actually used. It is 
stated that the cost of the operation of the plant under the erroneous 
readings of the meter is approximately what the company pre- 
viously claimed it could be operated for; and that had it been 
Iniown to the proper officer that the meter was inaccurate, and that 
the Government was consuming so much larger an amount of cur- 
rent than was originally anticipated, steps would have been taken to 
have the contractor comply with the requirements of the contract 
relative to the proper adjustment of the meter, and to reduce current 
consumption in order that the plant might be operated more economi- 
cally. 

Held^ that as the contract provided for payment according to meter 
measurement, except as expressly stipulated therein, and imposed 
,upon the company the duty of furnishing the meters and having them 
corrected at reasonable intervals to insure their accuracy ; that as the 
Government had made payments in accordance with the meter read- 
ings and since, if the claim of the company should be allowed, the 
Government would have suffered through the laches of the company, 
the claim should be disallowed ; that the department should take the 
position that under the terms of the contract it is only bound to pay 
the company according to the meter readings except as specifically 
stated therein, and that the company is estopped by its own laches as 
well as by the terms of the contract from showing that the readings 
were inaccurate. 

(76-741, J. A. G., Aug. 12, 1913.) 



CONTRACTS : Damages for delay in completion of work. 

A contractor for electrical installation submitted a claim for an 
amount withheld from the final- vouchers under his contract as dam- 
ages for delay in completion of the work beyond the date fixed in 
the contract. The amount deducted represented the difference in cost 
to the Government in operating the old acetylene gas lighting sys- 
tem and the new electric lighting system from January 1, 1913, the 
date of expiration of the contract, to March 28, 1913, the date upon 
which the work was completed. The deduction was made upon the 



270 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

findings of the constructing quartermaster that the company was not 
ready to commence the instaUation of electric fixtures until January 
1, 1913, and the Chief of the Quartermaster Corps stated further that 
it appeared to be indisputable that this contractor could not have 
completed his contract sooner than March 28, 1913, even if current 
had been available on November 1, 1912, instead of January 23, 1913. 
The company disputed these statements, insisting that it was ready 
to install fixtures December 1, 1912, submitting freight receipts show- 
ing that a large quantity of fixtures were on hand on that date, and 
that it could have completed the work within the contract period 
had the current been delivered on time. It appears that the current 
was not furnished until January 23, 1913, and that it was not prac- 
ticable under the contract to commence the work of installation until 
the current was available. 

Ileld^ that as the current was not furnished imtil January 23, 1913, 
the contractor could not be charged with the damages in question on 
the doubtful finding that even if the current had been available the 
work could not have been completed sooner than March 28, 1913, and 
advised that the amount deducted on the final vouchers should be 
paid to the contractor. 

(76-620, J. A. G., Aug. 8, 1913.) 



CONTRACTS: Deductions to cover loss or damage sustained by the United 
States by reason of delay in completion. 

On June 22, 1912, a contract for furnishing and installing one 
motor-driven triplex pump, with foundation, etc., was signed. This 
contract, which contained a provision that the work specified therein 
should commence on or before June 30, 1912, and be completed on 
or before November 6, 1912, and a further provision making the con- 
tract subject to the appro^'al of the Quartermaster General (now 
Chief of the Quartermaster Corps) , was not approved until Novem- 
ber 1, 1912, on which date there was also approved a supplementary 
contract extending the time limit for completion of the work from 
November 6, 1912, to January 6, 1913. The work Avas not completed 
until May 24, 1913. Upon payment being made there was deducted 
the cost of superintendence and inspection from January 7 to May 
24, 1913, and the cost to the United States of the coal used during 
that period over what would have been used had the contractors com- 
pleted their work on January 6, 1913. The contractors claimed that 
the deduction instead of covering the period from January 7 to May 
24, should cover only the period from March 18 to May 24, alleging 
that as in the original contract the date of completion was set 137 
days after the date of signing the contract they were in equity en- 
titled to 137 days after the delayed approval of the contract in which 
to complete the work, which would fix March 17, 1913, as the date 
of completion. 

IleXd^ that the supplementary contract, extending from November 
6, 1912, to January 6, 1913, the time of completion specified in the 
original contract, was made at a time when there had already been 
long delay in the approval of the original contract; that it was no 
doubt in view of this delay and of the causes which led to this delay 
that the parties entered into the supplementary contract in which 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 271 

it was agreed that the work should be completed on or before January 
6, 1913; that although at the time of entering into this supplemen- 
tary agreement the contractors might perhaps reasonably have urged 
that they should be granted as many days from the date of approval 
of the original contract as was allowed in the first instance between 
the date upon which the work was to be begun and the date upon 
which it was to be completed, no such provision was incorporated 
into the supplementary agreement; and that the joint effect of the 
two instruments, original and supplementary, was definitely to fix 
January 6, 1913, as the ultimate date of completion and to make the 
contractors chargeable with any loss or damage sustained by the 
United States after that date by reason of the contractors' failure to 
complete the work on or before that date. 
(76-741, J. A. G., Aug. 18, 1913.) 



CONTRACTS : Impossibility of performance, due to act of God. 

A firm of contractors contracted to deliver to the United States 
at Kansas City, Mo., or at points in the vicinity of Yates Center, 
Kans., 1,500 tons of " Kansas upland prairie hay " during the months 
of August and September, 1913, for shipment to the Philippine 
Isands. There was a shortage of the hay crop due to a drought in 
the vicinity where it was contemplated by the contract that the hay 
of the kind required would be procured, so that the contractors 
were unable to make deliveries in accordance with the requirements 
of their contract. On the question submitted as to whether the con- 
tract could legally be canceled. 

Held, that if, by reason of a drought in that vicinity, the contract 
Rad become impossible of performance according to its terms, as 
distinguished from simply more difficult to perform, the contractors 
were legally released from the performance of their contract; that 
the contract in calling for " Kansas upland prairie hay " might be 
construed as conditioned on the existence of a crop of such hay; 
and that if, by reason of drought, there was no such hay procurable 
the contract could not be performed according to its terms and the 
contractors would be legally relieved on the ground of impossibility 
of performance according to the terms of the contract. See Digest 
J. A. 0., 1912, p. 335, X C. 

(76-600, J. A. G., Aug. 13, 1913.) 



DETACHED SERVICE: Status of officer assigned to special duty as in- 
structor of regimental recruits. 

A second lieutenant of Troop L, Fifth Cavalry, served as instruc- 
tor of recruits belonging to that regiment. While on that duty said 
lieutenant had under his instruction from 7 to 25 recruits belonging 
to Troop L, and in addition thereto the recruits belonging to the 
other three troops of the third squadron. Fifth Cavalry. These 
recruits were formed into separate detachments only when at drill, 
at which time they came under the immediate authority and super- 
vision of said lieutenant as instructor of recruits; but in respect of 
administration, discipline, quarters, and subsistence each recruit was 
dealt with as a member of the troop to which he had been assigned. 



272 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

While serving as instructor of said recruits said lieutenant per- 
formed his duties under the immediate orders of the regimental com- 
mander; was excused from all other duties; was not subject to the 
orders of -the connnanding officer of Troop L, or any other troop; 
and was carried on troop and regimental returns as on special duty 
drilling recruits. The question submitted was whether or not said 
lieutenant, while in the performance of the duty above described, was 
actually present for duty with a troop of Cavalry within the meaning 
of the detached service legislation of August 24, 1912 (37 Stat., 571, 
645), the question being accompanied by the suggestion that as the 
recruits placed under the lieutenant's instruction always included a 
number belonging to the troop to w^hich he was assigned, his case is 
within the purview of paragraph 8, General Orders No. 44, War De- 
partment, 1912, which reads as follows : 

''An officer actually on duty with a detached portion of his troop, 
battery, or company is to be regarded as actually present for duty 
with his organization." 

Held., that to make the foregoing rule applicable the officer's rela- 
tion to the detached portion of the troop must be incidental to and 
must flow from his relation to the troop itself (J. A. G. O., 6-124, 
Nov. 18, 1912; Bulletin No. 4, War Department, 1913, p. 8): that 
this lieutenant did not exercise authority over the recruits of Troop 
L because of a common relation to said troop ; that his duty relations 
with said troop had been terminated for the time being; that the 
authority he intermittently exercised over L troop and other recruits 
was exercised in pursuance of the orders of his regimental com- 
mander; that in so far as these recruits constituted a detachment in 
any sense they w^ere a detachment of the regiment or squadron and not 
of Troop L; that the status of this lieutenant was that of an officer 
detached from his troop and assigned to the special duty of drilling 
recruits belonging to the squadron, wdio were assembled daily for 
that particular purpose; that the mere fact that some of the recruits 
under his instruction at daily recruit drill came from the troop to 
which he stood formally assigned at the time could not serve to make 
his performance of duty with this body of recruits duty with his 
troop or a detached portion thereof in the sense of the detached- 
service legislation (J. A. G. O., Jan. 15, 1913; Bulletin No. 4, War 
Department, 1913, pp. 6 and 7) ; and that, therefore, while in the 
performance of the duty above described, he was not actually present 
for duty with a troop of cavalry or a detachment thereof within the 
meaning of the detached-service legislation of August 24, 1912. 

(6-124, J. A. G., Aug. 14, 1913.) 



DISCHARGE OF SOLDIER: Under a seven-year enlistment, by purchase 
or on account of the dependency of his parent; can he be recalled to 
active service? 

The question submitted was whether in the case of a soldier enlisted 
for a term of seven years now prescribed by law, a discharge by pur- 
chase or on account of the dependency of a parent would serve to re- 
lieve the soldier from the liability to be recalled for active service 
which rests upon a soldier furloughed to the Army reserve. Both 
the act which authorizes his discharge by purchase (Sec. 4, act of 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 273 

Jvme 16, 1890, 26 Stat., 157) and the act which authorizes discharge 
on account of the dependency of a soldier's parent (sec. 30, act of 
Feb. 2, 1901, 31 Stat., 756) provide for the complete separation of a 
discharged soldier from the military service. Section 2 of the act of 
August 24, 1912 (37 Stat., 590); which section prescribes a seven- 
year term of enlistment and provides for the establishment of an 
Army reserve contains a proviso to the effect — 

" That except upon reenlistment after four years' service or as now 
otherwise provided for by law, no enlisted man shall receive a final 
discharge until the expiration of his seven-year term of enlistment, 
including his term of service in the Army Reserve, * * *." 

Held^ that the effect of the language " or as now otherwise pro- 
vided for by law," as employed in the statute prescribing the seven- 
year term of enlistment and providing for the establishment of an 
Army reserve, is to continue in force in respect of the soldier who 
enlists under the terms and conditions prescribed in that statute, the 
provisions of the acts of June 16, 1890, and February 2, 1901, relating 
to discharge by purchase or on account of the dependency of a parent, 
and that a discharge by purchase or on account of the dependency 
of a parent granted to a soldier enlisted for the term of seven years 
now prescribed by law accomplishes a complete separation of the 
soldier from the service and therefore relieves him from any liability 
to be recalled for active service during the unexpired portion of the 
seven-year term for which he had been enlisted. 

(6-300, J. A. G., Aug. 15, 1913.) 



DISCIPLINE: Disease the result of a soldier's own misconduct; can he 
be broug-ht to trial and punished for failure to disclose the fact that 
he is suffering therefrom? 

The question submitted was whether a soldier might properly be 
brought to trial and punished for failing to disclose the fact that he 
was suffering from a venereal disease, in view of the fact that such 
disclosure might subject him to loss of pay, under the provisions of the 
Army appropriation act of March 2, 1913 (37 Stat., 706), or subject 
him to trial pursuant to the provisions of General Order No. 17, 
W. D., 1912. The said act of March 2, 1913, which repeats in sub- 
stance a similar provision in the Army appropriation act of August 
25, 1912 (37 Stat., 572), pix)vides in effect that no officer or enlisted 
man shall receive pay from the appropriations therein contained for 
time while absent from active duty on account of sickness resulting 
from his own intemperate use of drugs, or alcoholic liquors, or other 
misconduct. This office held in an opinion dated January 31, 1913, 
that General Order No. 17 could not be made the basis for the punish- 
ment of a soldier for disobedience of its provisions, even though 
brought to his attention; that the order was addressed to command- 
ing officers and imposed upon them the duty of requiring enlisted 
men to observe the sanitary precautions mentioned ; and that in order 
to render enlisted men liable to punishment pursuant to said order, 
special instructions should be issued by commanding officers, re- 
quiring soldiers to observe the prescribed precautions. In the case 
und,er consideration post orders were issued requiring compliance 

93668°— 17 18 



274 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

with the terms of said General Order No. 17, and under the terms 
of said orders a soldier failing to report himself for the preventive 
treatment therein provided for, after exposure to the danger of con- 
tracting venereal disease, becomes subject to trial by court-martial 
for such failure, if it afterwards develops that he became infected 
through such exposure. After the publication of the post orders the 
existence of a venereal disease became a material part of the offense 
for which the soldier might be punished, and which must be proved 
in order to make out the offense. 

Held^ that an enlisted man could not legally be punished for fail- 
ing to disclose facts which would amount to a confession or an ad- 
mission of an offense for which he might be punished, or which 
might amount to an admission of a material fact constituting a 
portion of sucli offense ; that the punishment of a soldier for failing 
to disclose his condition in cases like the one under consideration 
would amount to an infliction of a punishment for failure to volun- 
teer material evidence against himself; that it would not be a viola- 
tion of his rights to compel the soldier to submit to a proper ex- 
amination to determine whether or not he was suffering from venereal 
or other disease ; but that no soldier should be brought to trial for not 
disclosing his condition in that respect. 

(72-210, J. A. G., Aug. 5, 1913.) 



EIGHT-HOUR LAW : Do deck hands and stokers on Government vessels 
come within its provisions? 

Five deck hands and one stoker employed on dredges engaged in 
river and harbor improvements were dismissed because they refused 
to render additional service of two hours each per day in order to 
relieve overworked watchmen. Complaint was made that said em- 
ployees were dismissed for refusing to work 10 hours per day, in 
alleged violation of the eight-hour law of March 3, 1913 (37 Stat., 
726), which reads in part as follows: 

" That the service and employment * * * of all persons who 
are now, or may hereafter be, employed by the Government of the 
United States or the District of Columbia, or any contractor or sub- 
contractor to perform services similar to those of laborers and me- 
chanics in connection with dredging or rock excavation in any 
river or harbor of the United States or of the District of Columbia 
is hereby limited and restricted to eight hours in any one calendar 
day; and it shall be unlawful * * * to require or permit any 
such * * * person employed to perform services similar to those 
of laborers and mechanics in connection with dredging or rock ex- 
cavation in any river or harbor of the United States or of the Dis- 
trict of Columbia, to work more than eight hours in any calendar 
day, except in case of extraordinary emergency: Provided^ That 
nothing in this act shall apply or be construed to apply to persons 
employed in connection with dredging or rock excavation in any 
river or harbor of the United States or of the District of Columbia 
while not directly operating dredging or rock-excavating machinery 
or tools * * *." 

Held^ that in view of the decision of the Supreme Court in the 
case of Ellh V. United States (206 U. S., 246), that crews of tugs, 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 275 

SCOWS, and dredges were not laborers or mechanics within the mean- 
ing of the eight-hour law of August 1, 1892 (27 Stat., 340), but 
belonged in the distinctive class of seamen, deck hands, and stokers 
employed upon dredges, being a part of the crews of the dredges, 
must also be placed under the same classification; that under the 
terms of the act of March 3, 1913, swpra^ they could not be con- 
sidered as persons employed to perform services similar to those of 
laborers or mechanics in connection with dredging, as there was, 
legally speaking, no similarity between such services; and that 
the law, having sharply distinguished the crew from laborers and 
mechanics, had by the same token distinguished between the services 
of the two classes, and, furthermore, that the proviso of said act 
limiting its application to persons employed and directly operating 
dredging or rock-excavating machinery or tools excluded from the 
benefits of the act all persons not so employed, including deck hands 
and stokers. 

Tleld^ further^ that for the reasons given the district engineer 
officer had authority to require deck hands and stokers of the crews 
of dredges employed by him to remain on the dredges for more than 
eight hours in a calendar day, and that he was legally justified in 
dismissing those deck hands and stokers who refused to obey his 
directions. 

(32-221, J. A. a, Aug. 29, 1913.) 



EIGHT-HOim LAW: Telegraph, operators not laborers or mechanics. 

Upon the question submitted as to whether a telegraph operator 
is a laborer or mechanic within the meaning of the eight-hour 
statute, 

Tleld^ that it may be said without hesitation that he is not a 
mechanic; that, as his manual labor is attended by a far greater 
amount of technical skill and brain exertion, he may be considered 
not as one who labors principally with his physical powers, but as 
one whose services consist mainly of work requiring mental skill; 
that the element of mental skill and brain power so largely enters 
into his work that the term " laborer " used in the law does not apply 
to him, and that he is not, therefore, either a mechanic or a laborer 
within the meaning of the eight-hour statute. 

(32-223, J. A. G., Aug. 13, 1913.) 



MILITARY RESERVATIONS: Right of the United States to require a 
telegraph company to remove its pole line from an avenue which 
had formerly extended through lands now occupied by the reserva- 
tion and which was subsequently closed. 

A municipality had granted to a telegraph company a franchise 
to extend a telegraph line along an avenue of the city, which ave- 
nue adjoined on one side a military reservation and marked the 
limits of the reservation in that direction. Subsequently the United 
States acquired a tract adjoining this avenue on the other side 
thereof from the reservation for an addition to the reservation, upon 
which the old avenue was closed and a new avenue was opened up 



276 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 

alongside of the new boundary of the reservation and extending in 
the same direction. Upon the question as to the legal right of the 
Government to compel the removal of this telegraph pole line from 
the site formerly occupied along the old avenue, 

Held^ That the granting of a franchise or a right to occupy a public 
road for the purpose of a telegraph line did not give to the grantee 
the right to occupy the land after the public road has been discon- 
tinued by lawful authority; that the municipality in this case had 
no authority to grant an easement over the land covered by the 
roadway but only, and no more than, a license to occupy the road 
so far as the public use of the same was concerned, and that when 
the road was discontinued the land reverted to the owners relieved 
of the public easement or right of way over the same, and the in- 
cidental franchise or right of the telegraph company to occupy 
the roadway with its line terminated; that the municipality could 
grant no greater title than it had or controlled ; and that any rights 
or franchise which it might grant in the road or highway was sub- 
ordinate to and limited by the extent of the public easement; that 
the right to locate upon a public road was an additional burden to 
the land; and that the legislature, under the constitution of the 
State, had no power to grant to the municipal authorities the right 
to burden the fee with this additional easement without the consent 
of the owner thereof. {Postal Tel. t€' Cahle Co. v. Eaton^ 170 111., 
513.) 

(80-621, J. A. G., July 22, 1913.) 



MILITIA: Equipment of, on basis of war strength. 

The major general of the New York National Guard recommend- 
ed that the war material necessary to equip the National Guard of 
New York on a war strength in that State be issued, and staled that, 
if there should be legal objection to the supply by the War Depart- 
ment of the property involved without charging the same against 
the State's allotment of Federal funds, the War Department might 
legally ship (not issue) such property to certain indicated supply 
depots or storehouses, consigned to a Federal or State supply officer 
for the purpose of storage only. 

Held., that there was no authority of law for the issuance of United 
States arms, accouterments, and equipments to the militia in excess 
of that sufficient to arm and equip the organized part of such militia 
as provided under section 13 of the act of January 21. 1903 (32 Stat., 
777) ; that the Government might arm and equip that part and no 
more, and that the issue of additional supplies would not be war- 
ranted under the statute; lield further., that there was no authority 
by which an officer accountable for Government property could 
transfer such accountability to another person not authorized by 
law to receive the same, and hence the shipment of arms, equipments, 
etc., in addition to those authorized under the act of January 21, 
1903, to an officer of the militia even without formal issue Avould be 
:without authority; that if the shipment was made to a Federal 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 277 

officer at several different points in the State as suggested he would 
remain responsible and accountable for the property without being 
able to exercise proper care and control over the same; and that 
such disposition also of War Department property could not legally 
be made. 

(80-120, J. A. G., Aug. 13, 1913.) 



MOUNTED OFFICERS: Sufficiency of mount. 

A captain of Cavalry was the owner of a mount which fulfilled 
all the conditions for a suitable mount required by (xeneral Order 
125, War Department, 1908, and also fulfilled all the conditions, ex- 
cept as to height, for a suitable mount, as mentioned in General 
Order 29, War Department, 1911. The officer appeared to have 
purchased the mount before the receipt of the general orders last 
mentioned at the Army post where he was serving and where he 
was in command of the post. 

Held^ that if the officer before the receipt of said General Orders^ 
No. 29, purchased the horse and, as commanding officer of the post, 
passed it as a suitable mount under General Order 125, he was 
entitled to pay as an officer furnishing his own mount, since General 
Order 29 continued the eligibility of a horse previously declared 
suitable for a mount. 

(72-142, J. A. G., Aug. 14, 1913.) 



PAY OF ARMY: Deduction for absence from duty without proper au- 
thority; acting dental surgeons. 

The act of March 3, 1911, creating the Dental Corps in the Medi- 
cal Department, provides: 

"■Hereafter there shall be attached to the Medical Department a 
dental corps, which shall be composed of dental surgeons and acting 
dental surgeons, * * *. All original appointments to the dental 
corps shall be as acting dental surgeons, who shall have the same 
official status, pay, and allowances as the contract dental surgeons 
now authorized by law. * * * " 

Contracts between the Surgeon General and acting dental sur- 
geons contained the following provision : 

" The said Surgeon General, U. S. Army, promises and agrees, 
on behalf of the United States, to pay, or cause to be paid, to the 
said , A. D. S., the sum of one hundred and fifty dol- 
lars a month during the continuance of this contract, both when on 
duty and when absent therefrom by proper authority." 

An acting dental surgeon was reported absent from duty on sick 
report because of a disease contracted through his own misconduct 
and not in line of duty. 

Ileld^ that absence from duty under the conditions stated could 
not be characterized as absence " by proper authority," and that un- 
der the terms of his contract the acting dental surgeon was not en- 
titled to pay during the period of such absence. 

(6-227.3, J. A. G., July 28, 1913.) 



278 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

PUBLIC PROPEIITY: Army stores awaiting shipment in a railway freight 
depot destroyed by fire. 

Stores belonging to the United States were delivered by various 
dealers in Boston to a certain railroad with instructions that the 
dealers take shipping receipts to be indorsed " Government bill of 
lading to follow for each consignment to each post." The bill of 
lading for all the stores in question was made out by the quarter- 
master and mailed to the railroad agent during the afternoon of 
February 26, 1913. The stores were destroyed by fire in the freight 
depot that night at 11.45 p. m. The railroad company claims that 
the receipts show that the shipment was delivered to the railroad a 
number of days prior to the fire and was held in the freight house 
pending receipt of the Government bill of lading; that the articles 
composing this shipment came from various concerns in the city 
with notations on their shipping receipts that they be held for the 
Government bill of lading ; that the goods were held by the railroad 
not as a common carrier but as a warehouseman, as they were not 
actually in transit or ready to go forward. 

Held^ that if the shipment could not have been made without this 
bill of lading and if it was not received by the railroad company 
before the fire, the liability of the company would be that of a ware- 
houseman and not that of a common carrier; that in that case the 
company would be liable only for negligence or the want of ordinary 
care of the property, and the burden would rest upon the plaintiff 
to prove the negligence ; that on the other hand if it was incumbent 
upon the railroad company to have shipped these stores without 
waiting for the bill of lading, or if it could be shown that the bill 
of lading reached the railroad agent before the fire, then the liability 
of the railroad company would be that of a common carrier respon- 
sible for the full value of the goods which were destroyed. 

(80-013. eT. A. G., Aug. 20, 1913.) 



PUBLIC PROPERTY : Land, purchase of; when title becomes vested in the 
United States. 

The question as to when the title to land purchased becomes vested 
in the United States arose in connection with the payment of rent 
for the period from July 1 to 17, 1913, upon a tract of land that had 
been leased to June 30, 1913, with option to purchase, it appearing 
that the deed of sale of the property to the United States had been 
signed and delivered, and that the title had been approved by the 
Attorney General prior to July 1, 1913. 

Held, that deeds of sale of land to the Government are delivered 
with the intention that they shall become operative when the Attor- 
ney General approves the title {Ryan v. United States, 136 U. S., 
86), and that since in this case the Attorney General approved the 
title before July 1 the title to the property became vested in the 
United States before that date, and hence rent for the period from 
July 1 to 17 could not be paid. 

(80-214.13, J. A. G., Aug. 28, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 279 

PUBLIC PROPERTY: Loss of, due to fault of officer, agent, or employee. 

Upon a question as to the legal right of the department to with- 
hold from the pay of the superintendent of the Antietam battle- 
field the sum of $110 to cover the value of the Government property 
for which said superintendent was responsible and which, it was 
alleged, had been destroyed by fire as the result of his misconduct, 

Held, that it is an established rule that in an action by a servant to 
recover wages the master may show, by way of set-off or defense to 
the claim, injuries to his property caused by the servant's negligence, 
misconduct, or lack of due diligence in the performance of his duties; 
and that acceptance of the position of superintendent of the An- 
tietam battlefield served to establish the relation of employer and 
employee, or master and servant, between the Government and the 
incumbent of the position, and justified the official charged with 
supervising and paying said superintendent in invoking the forego- 
ing rule if, through the neglect of the latter, public property was 
damaged or destroyed ; 

Held further, that the superintendent of the Antietam battlefield 
was a civilian employee within the meaning of paragraph 699, Army 
Regulations, 1910, which provides that — 

" If articles of public property are embezzled, or lost or damaged 
through neglect, by a civilian employee, the value or damage as as- 
certained (and by a survey if necessary) shall be charged to him and 
set against any pay or money due him " ; and as such civilian em- 
ployee his pay was subject to deduction under the conditions specified 
in said regulation; 

And held further, that as the superintendent of the Antietam bat- 
tlefield was appointed by the head of an executive department pur- 
suant to statutory authority (act of Aug. 24, 1912, 37 Stat., 440, 
and act of June 23, 1913, Pub. No. 3, p. 31), and the designation 
applied to the position in said statutes implied that said superintend- 
ent was to be intrusted with the immediate possession and safe- 
keeping of the public property* pertaining to said battlefield, ho 
should be regarded as an officer or agent of the Government within 
the meaning of the act of March 29, 1894 (28 Stat., 47) ; and that as 
such officer or agent his account with the Government might be 
debited with the amount of any loss sustained by the Government, 
through his fault, in respect of property intrusted to his car^. 

(80^121, J. A. G., Aug. 13, 1913.) 



TRANSPORT ATIOW: Cost of, of soldier convicted of absence without 
leave. 

A soldier convicted by a court-martial of absence without leave 
was charged with the expenses incurred in transporting him from 
the place of apprehension to the place of his trial. The question 
submitted was whether he could also be charged with the expenses 
incurred in transporting him from the place of his trial to the station 
of his company. 

Held, that where a soldier had been tried and convicted as in this 
case, and the cost of his transportation from the place of apprehen- 



280 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

sion to the place of his trial had been deducted from his pay he 
eoidd not thereafter be charged with the further expense of his trans- 
portation from the place of trial to his station. 
(94-241, J. A. G., Aug. 6, 1913.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

ABSENCE: From duty on account of injury due to misconduct. 

The act of August 24, 1912 (37 Stat, 672), provides that— 

" No officer or enlisted man in active service who shall be absent 
from duty on account of disease resulting from his own intemperate 
use of drugs, or alcoholic liquors, or other misconduct, shall receive 
pay for the period of such absence from any part of the appropria- 
tion in this act for the pay of officers or enlisted men, the time so 
absent and the cause thereof to be ascertained under such procedure 
and regulations as may be prescribed by the Secretary of War." 

A private of cavalry became unfit for duty November 10, 1912, 
by reason of loss of vision, left eye, due to rupture of eyeball, acci- 
dentally incurred November 10, 19i2, by elbow of a comrade while 
engaged in a drunken brawl, not in line of duty. He was discharged 
March 15, 1913, " on account of loss of vision, left eye, due to rupture 
of eyeball. Disease not incurred in line of duty." Upon the question 
as to whether his pay for the above period was properly withheld, 

Ileld^ that absence with consequent loss of pay within the meaning 
of the above act must be on account of disease ; that where there 
was disease, the determination of "the cause thereof" Avas to be 
reached according to the procedure and regulations established, and 
such procedure and regulations must be understood and construed to 
relate to disease and the manner of determining its cause and the 
duration of the absence resulting therefrom ; that it appeared that 
the disability on account of which the soldier was absent and finally 
discharged was due to an injury and not a disease, and hence the case 
did not come within the purview of the act of August 24, 1912, and 
the regulations made by the Secretary of War in pursuance thereof; 
that said act dealt with absence on account of disease and not on 
account of injury^ and, being in the nature of a penal statute, must be 
construed strictlv. 

(Acst. Comp. "W. W. Warwick, Aug. 4, 1913.) 



COMMUTATION OF QUARTERS: Public quarters at post fully occupied 
through assignments to officers in excess of their authorized allowances. 

The Auditor submitted to the Comptrollei- for approval, disap- 
proval, or modification his decision, as follows: 

" That, when it is certified to this office by the proper officer on 
a voucher for payment of commutation of quarters that the officer 
to whom payment is made is on duty without troops, and that the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 281 

public quarters at the post or station at which he is serving are 
fully occupied, it is the duty of this office to admit such voucher 
regardless of the fact that it is known that the officers occupying 
such quarters are occupying more than their authorized allowance 
of rooms." 

Held, that with but very few exceptions made by law the cer- 
tificate of approval of an officer is not intended to be conclusive upon 
the accounting officers, but that the latter must render a decision on 
the legality of the claim for payment or for crediting an account 
upon the facts ; that upon them is cast the responsibility for securing 
the facts and upon other officers the duty of furnishing upon request 
such evidence in addition to certificates as may be called for by the 
accounting officers; that this right to call for evidence is inseparable 
from the duty to audit and to decide questions of law and fact, and 
that it must be exercised reasonably as must any public duty, but that 
the accounting officer, and not an administrative officer incun-ing 
liabilities or expending public funds, must determine the extent to 
which it may be necessary to go in any particular case in collecting 
the evidence to establish what he believes to be the essential fact as 
a basis for decision ; that the certificate that public quarters at a post 
are fully occupied should be accepted as prima facie evidence of the 
facts underlying the conclusion certified to but should not be con- 
sidered as the best evidence in all cases nor as relieving the Auditor 
of responsibility of determining the facts and securing the evidence 
necessary to a decision. 

Held further, that the fact that an officer's application for assign- 
ment of quarters in kind was denied did not entitle him to com- 
mutation of quarters, if in fact there were public quarters at the 
post or station which might have been assigned to him, but that, 
under existing conditions as to construction of houses, rooms in 
excess of the authorized allowance in a single house assigned to and 
occupied by an officer and his family were not rooms that must 
necessarily have been assigned to another officer, and that while such 
conditions existed these excess rooms were not quarters and probably 
ought not to have been provided with furniture or light or separate 
heating; that commutation of quarters for an officer on duty at a 
post where there were public quarters could not be granted by an 
order; that the facts determined the right and that when the only 
rooms unoccupied were rooms in single houses in excess of the author- 
ized allowance of the occupants of those houses, but not adapted for 
separate quarters, there were no public quarters within the meaning 
of the law, but that the contrary was true where there were quarters 
occupied by persons not entitled to quarters; that the question 
whether or not there w^ere inhabitable although undesirable public 
quarters and all other questions involved in the payment of commu- 
tation must be decided by the Auditor or Comptroller in each case, 
and that while they might prefer to accept the decision of other 
officers they could not shift their duty in this manner, and must 
accept certificates of facts and conclusions only so far as they believed 
the situation justified that course. 

(Asst. Comp. W. W. Warwick, Aug. 18, 1913.) 



282 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

COMMUTATION OF QUARTERS: Status of of&cer directed to retain his 
station where no duties were to be performed. 

An officer of the Second Infantry on duty at the Army War College 
was relieved from dntv there by Special Orders No. 100, War De- 
partment, April 27, 1912, to take effect July 1, 1912, and by Special 
Orders No. 124, War Department, May 25, 1912, he was granted 
leaA-e of absence for two months to take effect upon his relief from 
said duty. By Special Orders No. 150, War Department, June 26, 
1912, he was transferred from the Second to the Ninth Infantry. 
Under date of June 26, 1912, the Adjutant General's Office addressed 
a letter to him, of which the following is an extract : 

" The Secretary of War directs that, upon being relieved from your 
present duty, you retain station in this city until the arrival of the 
Ninth Infantry at its stations in this country, and that upon the 
expiration of your leave, you join the station designated by the com- 
manding officer, Ninth Infantry." 

Ileld^ that this case came within the principal of the decision of 
the Comptroller, in 7 Comp. Dec. 502, where he held, quoting from 
the syllabus : 

"An officer of the Army, who was relieved from duty in Alabama, 
assigned to duty as special inspector of the Quartermaster's Depart- 
ment, and directed to proceed from Washington to various points in 
Cuba and to take station at Washington, did iiot acquire a iDerma- 
nent station at Washington, and he is not entitled to commutation 
of quarters ; " that in the present case it would seem that the purpose 
of the instructions of June 26, 1912, swprd^ was to keep the officer in 
a commutation-of-quarters status after his relief from duty at the 
Army War College on July 1, 1912, and hence he would not be en- 
titled to commutation of quarters after July 1, 1912, until the date 
upon which he should report for duty with his organization. 

(xisst. Comp. W. W. Warwick, June 18, 1913.) 



CONTRACTS: Damage for delays caused by the United States; unliquidated 

damages. 

A Government dredging contractor was delayed in commencing 
operations upon a certain portion of his work by the failure of the 
Government inspector to lay out the work, which failure was due to 
the loss of a blue-print map which had been mailed to the inspector, 
but had not been received by him. During the period of delay the 
contractor's plant was idle, at an estimated damage or cost of $300.41, 
for which a bill was rendered by the contractor against the United 
States. The contract provided for a corresponding extension of time 
for the completion of the work on account of delays caused through 
the fault of the Government. 

Held., that as the contract provided a method for determining the 
damages resulting from delays caused by the Government, said 
method was exclusive and prohibited the allowance of any other 
damages (15 Comp. Dec, 282; 16 id.^ 714; New Jersey Foundry and 
Machine Go. v. United States, 44 Ct. Cls., 178) ; he,id further, that 
the claim was one for unliquidated damages, which the executive 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 283 

officers of the Government were without authority to settle (Cramp ■y. 
United States, 216 U. S., 494). 

(Comp. Geo. E. Downey, Aug. 21, 1913.) 



CONTmBUTED FUITDS: In connection with authorized work of improve- 
ment of rivers and harbors. 

Section 8 of the river and harbor act, approved March 4, 1913 (37 
Stat., 827), provides as follows: 

" That the Secretary of War is hereby authorized to receive from 
private parties such funds as may be contributed by them to be 
expended in connection with funds appropriated by the United States 
for any authorized work of public improvement of rivers and har- 
bors, whenever such work and expenditure may be considered by the 
Chief of Engineers as advantageous to the interests of navigation." 

Ileld^ That any funds received by the Secretary of War under the 
provisions of the above section of said act of March 4, 1913, should 
be deposited by him in the Treasury of the United States as a 
special fund, properly designated in each case to distinguish it from 
other funds where it would be subject to his official direction the same 
as the funds appropriated by Congress for the particular objects foi* 
which such funds are contributed ; that the amounts of the disburse- 
ments of such special funds should be filed, audited, and accounted 
for the same as the funds appropriated by Congress, this being the 
only way of keeping proper track of said funds. 

(W. W. Warwick, Asst. Comp., July 17, 1913.) 



INSimANCE : Disposition of moneys received from, upon dredges being 
constructed under contract, which were damaged by fire. 

Two dredges being built under contract for the Engineer Depart- 
ment were damaged by fire in the contractor's plant. The speci- 
fications to the contract contained the following provision as to 
insurance : 

" The contractor shall keep the dredges or component parts thereof 
insured against fire and marine risks, at his own cost, for and in 
behalf of the United States, and in the name of the contracting 
officer, to at least the full amount of the payments which shall have 
been made by the United States * * *." 

The loss to the dredges by fire was reported to have totaled 
$3,411.77, which amount was paid to the contracting officer. Of 
this amount, $1,603.27 represented the loss on material for which 
the Government had already paid, and the balance, $1,808.50, rep- 
resented the amount due the boiler works for material which they 
had furnished but for which they had not been paid by the Gov- 
ernment. The question submitted was as to what disposition should 
be made of the insurance money received. 

Held^ that the amount which represented the loss on material for 
which the Government had already paid, i. e., $1,603.27, should be 
deposited to the credit of the appropriation under which the dredges 
were being constructed, in order to restore the proportion that ex- 



284 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

isted in the case of each dredge before the fire between the payments 
and the percentage of completion of the work; that the bahince of 
the insurance received, $1,808.50, should also be placed to the credit 
of the appropriation under which the dredges were being constructed 
in order to have an accounting of the full amount of insurance paid, 
and that then the contractors should be paid from the appropriation 
a similar amount as for materials furnished under the contract less 
the proper retained percentages, noting on the voucher that the pay- 
ment was for materials lost by the fire and not paid for but reim- 
bursed to the Government in that amount under the insurance policy. 
(Asst. Comp. W. W. Warwick, July 21, 1913.) 



SIX MONTHS' GRATUITY PAY: What constitutes " designation " within 
the meaning of the act of May 11, 1908. 

A sergeant of cavalry was enlisted January 6, 1911, and died May 
3, 1913. On the day of his enlistment he designated his mother as 
his beneficiary to receive the six months' gratuity pay in the event of 
his death. She died May 5, 1912. He made no other formal desig- 
nation of a beneficiary, but on July 4 he wrote to his sister as follows: 

" Nellie, it will be a good thing for you to keep communications 
with both of us (meaning his brother Thomas, also in the service, and 
himself), because in event of our deaths at any time you will get the 
six months' pay from the U. S. Of course, we hope nothing hap- 
pens like that, but if it does would just as leave see you get it as the 
U. S. keep it." 

Members of his troop testified to the handwriting of this letter as 
his. and also that he had said after his mother's death that he " had 
nothing to do with his money except to help his sister," and that he 
intended making her his beneficiary. 

Held, that the act of May 11, 1908 (35 Stat., 108), under which the 
payment of six months' gi-atuity pay is authorized, is a beneficial 
statute and should be liberally construed ; that the designations there- 
under should be made in accordance with the regulations promul- 
gated by the Secretary of War to insure against fraud and mistake, 
and that "no departure from the regulations should be recognized 
except where it is clear there has been an informal designation, and 
that it is entirely free from doubt, or fraud, or mistake;" that in 
the present case the soldier's letter to his sister did not contain lan- 
guage amounting to a gift or designation, but was rather the state- 
ment of a supposed fact; that the testimony of the member of his 
troop that he intended making his sister his beneficiary was not the 
testimony of a designation Tnade but of one intended to he Tnade, 
and that under the facts as appearing there was no designation of a 
beneficiary to receive his six months' gratuity pay, within the mean- 
ing of the laws and regulations governing the same. 

(Asst. Comp. W. W. Warwick, Aug. 2, 1913.) 



TRANSPORTATION: Passenger; party rates. 

A railroad company filed a claim for passenger transportation 
service, rendering its bills on the basis of the regular single-fare 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 285 

rates, while the Auditor in the settlement of the claim based his 
allowance upon the party-fare rates, as published in the company's 
tariff. It appeared that the company in the publication of its party- 
fare rates stipulated that — 

" These fares are available only when cash is paid at the time the 
ticket is issued." 

It further appeared that the service under consideration was fur- 
nished on requests which called for transportation of the number of 
men indicated but without specifying party ticket, and that a single 
ticket for the entire party was furnished in all but four of the 
recounts included in the claim submitted for settlement; and that 
with these four exceptions the class of service received was, there- 
fore, jjarty service, i. e., the transportation of a number of persons 
on a single ticket, and was therefore, subject to all the incidents of 
party service on the part of both the travelers and of the railroad 
company. Upon an appeal from the Auditor's settlement. 

Held, that party tickets having been furnished the Government, 
which subjected the travelers to the same conditions as all other trav- 
elers on party tickets, there was no reason why the Government 
should pay a higher rate merely because the service was not paid for 
at the time; that the transportation under consideration was fur- 
nished in accordance with the long-established practice of the trans- 
portation companies to accept Government transportation requests in 
lieu of cash and furnish the transportation indicated thereon and 
present the said requests to the proper Government officer for pay- 
ment; and that when the transportation was so furnished the only 
recognized basis of payment therefor was the cash basis; that the 
transportation was, therefore, furnished the Government on its per- 
sonal credit, which was considered as equivalent to cash and so 
accepted; and that settlement therefor should be made upon that 
basis ; that the amount to be allowed should be determined by apply- 
ing the party rates for the party service and the individual rates for 
individual service ; in other words, by applying the same rates as are 
charged the public for like and similar service. 

(Comp. Geo. E. Downey, Aug. 29, 1913.) 



TRANSPORTATION: Personal baggage of an Army officer entitled to 
mileage. 

An Army officer traveling abroad under conditions which entitled 
him to mileage presented his accounts containing charges for trans- 
portation of personal baggage amounting to 150 pounds or less, while 
so traveling. Paragraph 1137, Army Regulations, 1910, provides : 

"An officer drawing mileage is entitled to free transportation for 
150 pounds of baggage. If his ticket does not cover the full 150 
pounds, the Quartermaster Corps will furnish transportation for 
the difference as excess baggage." 

The act of June 12, 1906 (34 Stat., 246), provides: 

" Hereafter officers, active and retired, when traveling under com- 
petent orders without troops, and retired officers who have so trav- 
eled since March 3, 1905, shall be paid seven cents per mile, and no 
more. * * * " 



286 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Held^ that the statute having limited the allowance of an officer 
traveling under conditions which entitle him to mileage to 7 cents 
per mile and no more, the payment of anything in addition for the 
transportaton of his personal baggage while so traveling was not 
authorized, and that said paragraph 1137 of the Army Regulations 
was contrary to law and without legal effect. 

(Asst. Comp. W. W. Warwick, July 29, 1913.) 



OPIinONS OF THE ATTORIJEY GENERAL. 

(Digests prepured in the office of tlie Judge Advocate General.) 

ABSENCE: Leave of, to an officer of the Engineer Corps to permit of his 
employment by the Interstate Com.merce Commission. 

The Secretary of War submitted the question as to whether under 
the provisions of section 1224, Revised Statutes, he was authorized 
to grant leave of absence to an officer of the Engineer Corps in order 
that he might be employed by the Interstate Commerce Commission 
to assist in the valuation of properties of carriers under the act of 
March 1, 1913. Said section provides — 

" No officer of the Army shall be employed on civil works or in- 
ternal improvements, or be allowed to engage in the service of any 
incorporated company, or be employed as acting paymaster or dis- 
bursing agent of the Indian Department, if such extra employment 
requires that he shall be separated from his company, regiment, or 
corps, or if it shall otherwise interfere with the performance of the 
military duties proper." 

Held^ that the above section applied to officers of the Engineer 
Corps as well as to other ■ officers of the Army ; that the kind of em- 
ployment proposed was employment on civil works or internal im- 
provements within the prohibition of said section; that it would 
require the officer to be separated from his company, regiment, or 
corps, and that it would interfere with the performance of his mili- 
tary duties proper, both of which conditions likewise come within 
the prohibition of said section; and that, therefore, there was no 
legal authority for granting leave of absence for the purpose pro- 
posed. 

(Opin. Atty. Gen. July 2, 1913.) 



ARMS AND MUNITIONS OF WAR: Certain articles that are embraced 
within the term; others that are not. 

The export of saddles, bridles, canteens, and carbine scabbards by 
merchants in the United States to merchants in Mexico falls within 
the purview of the President's proclamation of March 14, 1912, issued 
pursuant to joint resolution of same date prohibiting transportation 
of arms and munitions of war to Mexico. 

(29 Opin. 394, Apr. 20, 1912.) 

The export of gun grease falls within the prohibition of said proc- 
lamation. 

(29 Opin. 414, May 20, 1912.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 287 

The export of paper caps for toy cap pistols does not fall within 
the prohibition of said proclamation. 
(29 Opin. 571, Nov. 18, 1912.) 

Whether the export of certain air rifles falls within the prohibi- 
tion of said proclamation is a question of fact dependent upon 
whether they can be used in the destruction of life. 

(30 Opin." 9, Jan. 6, 1913.) 



ARMS AND MUNITIONS OF "WAR: Provisions and clothing for use of 
troops. 

The Acting Secretary of War, under date of August 5, 1913, re- 
quested an opinion upon the following subject, namely: 

"Are the items ' provisions ' and ' clothing ' for the use of troops 
to be considered as embraced within the term ' munitions of war ' in 
contemplation of the President's proclamation of March 14, 1912, 
and the joint resolution of Congress of the same date?" 

Said joint resolution amended the joint resolution relating to 
"coal or other material used in war," approved April 22, 1898 (30 
Stat., 630). The resolution as amended prohibits the export of arms 
or munitions of war to any country in which according to the Presi- 
dent's proclamation conditions of violence exist which are promoted 
by the use of such materials. 

Held., that neither provisions, nor ordinary, as distinguished from 
military, clothing fall within the category of " munitions of war." 

(Opin. Atty. Gen., Aug. 11, 1913.) 



DECISION OF UNITED STATES COURT. 

(Digest prepared in the office of the Judge Advocate General.) 

COURTS-MARTIAL: United States Navy; jurisdiction and pleadings; 
habeas corpus. 

An enlisted man of the Navy had been tried by a court-martial for 
making, under oath, false and contradictory statements concerning 
frauds practiced by him upon the United States in conjunction with 
representatives of Government contractors from whom supplies for 
the Navy were purchased. He was found guilty and sentenced to 
five years' imprisonment at hard labor, deprivation of pay for that 
period, and dishonorable discharge at the expiration of said period 
of five years. 

1. Article 8 of the articles for the government of the Navy (U. S. 
Comp. St. 1901, p. 1105), under the head of offenses punishable at 
the discretion of a court-martial, provides that such punishment as 
the court-martial may adjudge may be inflicted on any person of the 
Navy who is guilty of profane swearing, falsehood, dnmkenness, 
gambling, fraud, theft, and any other scandalous conduct tending 
to the destruction of good morals. Held^ that a charge against a 
chief commissary steward on board a battleship of scandalous con- 
duct tending to the destruction of good morals, in that on one oc- 



288 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

casion he made an affidavit confessing certain frauds against the 
Government in connection with supply contractors for the Govern- 
ment, while on another occasion he testified under oath before a duly 
constituted court of inquiry, and denied the truth of his former 
statement, was sufficient. 

2. Constitution of the United States, Article I, confers on Con- 
gress the right to make rules for the government and regulation of 
the land and naval forces, and Article III gives Congress the power 
to create certain Federal courts. Held^ that such powers are inde- 
pendent of each other, and hence that determinations of military 
courts-martial within their jurisdiction are not reviewable by the 
civil courts. 

3. Where a charge against a person tried by a military court is 
within the court's jurisdiction, and is authorized by the Army or 
Navy regulations, the manner of setting out the offense is a matter 
of pleading, rather than jurisdiction, the sufficiency of which is for 
the exclusive determination of the court-martial. 

4. Where a court-martial had jurisdiction to try petitioner for an 
offense against the naval regulations and to impose sentence author- 
ized thereby, a civil court in a habeas corpus proceeding could only 
review the question of jurisdiction, and could not pass on alleged 
errors of law committed by the court-martial or on the severity of 
the sentence imposed. 

{Ex parte Dichey, U. S. District Court, District of Maine, 204 
Fed. Kep., 322.) 



BULLETIN 31. 

Bulletin | WAR DEPARTMENT, 

No. 31. ] Washington, October 10, 1913. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of September, 1913, including one opinion 
for August, 1913, not heretofore published, of certain decisions of the 
Comptroller of the Treasury, and of decisions of courts, is published 
for the information of the service in general. 
(2054071 C— A. G. O.) 
By order of the Secretary of War : 

LEONARD WOOD, 
Ma'jOT General^ Chief of Staff. 
Official: 

GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

APPROPRIATIONS: Lump sum; payment for personal services from; pro- 
motion to places of the same designation. 

It was proposed to promote certain clerks and employees of the 
Signal Service at large, paid from lump-sum appropriations, to 
positions of the same designation, at the same places, and at in- 
creased rates of compensation, but which rates were not in excess 
of those paid for the same or similar services during the preceding 
fiscal year. Section 7 of the act of August 26, 1912 (37 Stat., 626), 
as amended by section 4 of the act of March 4, 1913 (37 Stat., 790), 
provides — 

" That no part of any money contained herein or hereafter appro- 
priated in lump sum shall be available for the payment of personal 
services at a rate of compensation in excess of that paid for the same 
or similar services during the preceding fiscal year; nor shall any 
])erson employed at a specific salary be hereafter transferred and 
hereafter paid from a lump-sum appropriation a rate of compensa- 
tion greater than such specific salary, and the heads of departments 
shall cause this provision to be enforced." 

Held, that it was not the purpose of this law to forbid promotions 
from one established position to another as vacancies might occur, 
where the compensations were to be paid from lump-sum appropria- 
tions, although the designations might be the same and the duties 
more or less similar, and that where such positions existed during 
the preceding fiscal year, it would ordinarily be assumed that the 
duties were not the same or similar within the meaning of the law ; 
but that increases in compensation without change of position, 
although given for increased proficiency or experience and although 
93668°— 17 19 ^ 289 



290 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

not in excess of the rates of compensation paid for the same or simi- 
lar services in otlier positions durino; the preceding- fiscal year, coidd 
not lawfully he made. Held, therefore, that if the promotions were 
to fill vacancies in established positions which existed during the pre- 
cedino- fiscal year thev might lawfully be made: otherwise not. 
(5-075, J. A. G., Sept. 9, 1913.) 



BONDS: Of bidders and contractors for supplies; annual or blanket bonds. 

The Chief of the Quartermaster Corps submitted a plan for allow- 
ing prospective bidders and contractors to file annual or blanket 
bonds covering all bids to be made by them within a stipulated period 
and the performance of awards or contracts thereunder. 

Field, that as the statute did not require guaranties or bonds in 
respect to the purchase of supplies or the procurement of services 
for the Army, there was no legal objection to adopting a form of 
annual bond to replace the guaranty and bond required by regula- 
tions in support of each bid and contract, respectively; but adcised, 
owing to the fact that in fixing the penalty in bonds guaranteeing the 
performance of contracts upon public works, in which class of con- 
tracts the statute required such bonds, the claims of laborers and 
material men must be considered, the matter of applying the pro- 
posed form of bond to contracts for the construction and repair of 
buildings or other public works should be deferred until the plan 
had been given practical application in respect to the purchase of 
supplies and procurement of services. 

(1:2-150, J. A. G., Sept. 11, 1913.) 



CLERKS AND EMPLOYEES: Hours of labor on Saturday; working' 
overtime. 

Certain skilled office laborers at the Army Arsenal. Philadelphia, 
Pa., refused to obey the order of the connnanding officer to work 
Saturday afternoons during the month of August in order to bring 
up the work of the office, which had fallen behind, and which, in con- 
nection with the necessity for the speedy manufacture of certain 
ammunition, created emergent conditions justifying the employment 
of hiborers bevond the time for a legal day's work. The Executive 
order of June":25, 1909 (W. D. Circ. Xo. 42, July 6, 1909). provided 
that during the months of July, August, and September of each 
year, and until further notice, four hours, exclusive of the time for 
luncheon, should constitute a day's work on Saturdays for all clerks 
and other employees of the Federal Government wherever employed, 
w^ith the proviso that — 

"This order shall not apply to any bureau or office of the Gov- 
ernme'ut, or to any of the clerks or other employees thereof, that 
might for special public reasons be excepted therefrom by the head 
of the department having supervision or control of such bureau or 
office." 

flehL that the commanding officer of the arsenal was not the 
"head of the department," within the meaning of said proviso, who 
had authority to except the clerks or employees of any bureau or 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 291 

office under his control from the operation of the order, but that the 
power to make such exceptions should be limited to the heads of 
departments as the term is conunonly understood. 

Reld further^ that the effect of the order Avas to make Saturdays 
during the months of July, August, and September a four-hour day 
out of what would otherwise have been an eight-hour day and subject 
to the same limitations, and that in case of emergency the hours 
might be extended the same as in the case of an eight-hour day. 

(16-210, J. A. G., Sept. 8, 1913.) 



CONTRACTS: Alterations and extensions; assent of sureties. 

An opinion was desired as to Avhether the assent of the sureties on 
the contract should be obtained where the same was modified, as in 
the case referred to, by materially reducing the quantity called for, 
and also as to whether it was necessary to have such assent to an ex- 
tension of the contract, in view of the fact that the bond covered the 
original performance of the contract " as well during any period of 
extension of said contract that may be granted on the part of the 
United States as during the original term of the same." The ac- 
companying form of extension used by the Quartermaster Corps im- 
posed upon the contractor responsibility for loss by fire or other 
cause, and gave the United States the right to make charges for in- 
spection and for damages, and to take over the work from the con- 
tractor wdienever, in the opinion of the officer in charge of the same, 
reasonable and satisfactory progress was not being made, together 
with the right to use the contractor's materials and appliances for 
that purpose. 

Held, that the obligation of a suret}' is strictly construed, and 
any material alteration, without his consent, of the contract for 
the performance of which he is obligated, even though it be for his 
benefit, will result in his release; and held further, that the consent 
of the surety should be obtained both in the matter of the modifi- 
cation and of the extension of the contract, and that it Avould be un- 
safe to rely upon the consent to an extension given in the condition 
of the bond should the extension be granted under the conditions 
proposed. 

(76-400. J. A. G., Sept. 26, 1913.) 



COPYRIGHTS: Of photographs made by a Government employee. 

An engineer of the Coast Artillery School detachment at Fort 
Monroe, Va., requested authority to copyright photographs made 
by him of projectiles and gases at the muzzles of guns and mortars, 
in order to insure that they would not be used for advertising pur- 
poses and general circulation. The question was raised as to the 
propriety and legality of copyrighting such photographs in the 
name of the director of the school, where the work was done, or in 
the name of the secretary of the school, the official character of the 
officer to appear in the copyright. 

Ilehh that under the c(!pyright law no person is entitled to a copy- 
right unless he is the '' author, inventor, or designer, within the 



292 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

meaning of the copj^right laws "' — that is, he must " by his own in- 
tellectual labor and skill produce a work new and original in itself," 
or he must be the legal representati\ e or assignee of such person (9 
Cyc. 10, et seq.). II eld ^ therefore, that the photographs in question 
could not be copyrighted in the name of the officials designated ex- 
cept in the character of assignee of the one Avho might make the 
photographs; and adrised, that, if the assignment be made, it be 
taken bv the official for and on behalf of the United States. 
(24-330, J. A. G., Sept. 3, 1913.) 



DETACHED SERVICE: Forfeiture of pay for ordering or permitting the 
same, in violation of law. 

The Secretary of War had decided upon the evidence then before 
him that a certain officer of the Army had violated the provisions of 
law relative to detached service by ordering or permitting a junior 
officer to remain on such service contrary to law, and had ordered 
a forfeiture of the officer's pay in accordance with the following pro- 
vision of the act of August 24, 1912 (37 Stat., 571) : 

"All pay and allowances shall be forfeited by any superior for 
any period during A^hich, by his order, or his permission, or by 
reason of his failure or neglect to issue or cause to be issued the 
proper order or instructions at the proper time, any officer shall be 
detached or permitted to remain detached in violation of any of 
the terms of this proviso.'' 

The officer stated as a reason why his pay should not be forfeited 
that he had not violated the law intentionally. 

Ilcld^ that the law is violated when the acts forbidden by it are 
done; and advised that the law should take its course in this case. 
Assuming, what is questionable, that the present case falls within 
the pardoning power of the President; held further^ that the order 
of forfeiture related back to the pay of the superior for the period 
during which the junior was detached, and that a subsequent pardon 
or remission would not restore it. 

(6-124, J. A. G., Sept. 8, 1913.) 



EIGHT-HOUR LAW: Extraordinary emergency; repair of cable obstruct- 
ing navigation. 

A wire transmission line of the cable at Dam No. 28 in the Ohio 
River broke, and together with a half-inch fall line dropped into 
the river. Early next morning certain employees of the Engineer 
Department started to replace the broken transmission line. Ordi- 
narily this work could have been completed in one day. but in this 
case the old transmission line got fouled between the carriers of the 
new line and the lines became so entangled that at quitting time they 
formed a complete and dangerous obstruction to navigation and 
could not be slackened or tightened sufficiently to clear the channel 
of the obstruction. To remove this obstruction the men labored in 
excess of eight hours in one day upon the work. 



DIGEST or OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 293 

II eld ^ that the difficulty due to the entanglement of the lines was 
plainly of an unusual character, not inherent in the work, and its 
occurrence could not be foreseen, and that such a state of facts con- 
stituted an extraordinary emergency within the meaning of the 
eight-hour law of March 3, 1913 (37 Stat., 726), and justified work- 
ing the men more than eight hours in one day. 

^(32-232, J. A. G., Sept. 3, 1912.) 



EIGHT-KOUR LAW: Including provisions of, in a contract for renovating 
blankets. 

A contract was to be entered into in pursuance of an advertise- 
ment and award for renovating blankets for the Government and for 
folding them preparatory to shipment. 

Ileld^ that the process of renovation was similar to the process of 
laundering, and was not to be classed as a process of manufacture; 
that it could not, therefore, be treated as the manufacture of a supply 
which could be purchased in the open market without reference to 
the eight-hour law of June 19, 1912 (37 Stat., 137) ; and that the 
provisions of said law relating to the extraction of a penalty for a 
violation of its requirements should be inserted in the contract. 

(76-720, J. A. G., June 25, 1913.) 

Held further^ that the provision of the law that no laborer or 
mechanic should be required or permitted to labor more than eight 
hours in any one day upon work contemplated by the contract, did 
not prohibit such laborer or mechanic, after working eight hours in 
one clay upon a Government contract, from working additional time 
upon some other contract. 29 Op. Attv. Gen., 534. 

(76-720, J. A. G., Sept. 13, 1913.) 



INTERNATIONAL CONGRESSES: Participation therein by the United 
States Government. 

The joint resolution of June 25. 1910 (36 Stat., 886), provides: 
" That the President of the United States be, and he is hereby, 
authorized to invite the International Congress of Refrigeration, 
now about to assemble in the city of Vienna, to hold its third meet- 
ing in the United States of America : Provided^ That no appropria- 
tion shall be asked or granted for any expense connected with the 
said congress." 

The act of March 4. 1913 (37 Stat., 913), provides : 
" Hereafter the Executive shall not extend or accept any invita- 
tion to participate in any international congress, conference, or like 
event, without first having specific authority of law to do so." 

The International Congress of Refrigeration was to be held at 
Chicago, 111., September 15 to 24, 1913. and an in\itation was ex- 
tended to the War Department to send delegates thereto. 

Ileld^ that, while it might be questionable Avhether the statute for- 
bidding the Executive from extending or accepting any invitation 
to participate in any international congress should be so construed 



294 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

as to ff;rbi(i the [)articipation of the department in such a congress 
as the one under consideration, if it wouhl n(;t involve any expendi- 
ture on the part of the ( io\ernment, there coukl be no legal objection 
to the presence in said congress of representatives of the War De- 
partment for the purpose of giving or receiving information regard- 
ing the work of the department in its relation to the objects of said 
congress, where such presence would not involve any expenditure 
on the part of the United States: and hrJiJ also, that the Secretary 
might legally name delegates from the War Department to attend' 
said congress, if all the expenses incident to their attendance should 
be def raved bv said congress. 

(5-082, J. A. G., Septra and 17. 1913.) 



MEDICAL ATTENDANCE: Payment for, when rendered to an employee of 
the Mississippi Kiver Commission. 

An employee of the Mississippi River Commission was injured in 
the course of his service with said Commission, and a bill for medical 
and surgical services in his case, rendered at the request of the 
United States officials, was presented for payment. The Commission 
had previously issued a circular containing regulations among which 
was one which authorized officers in charge of wwks under its con- 
trol, in case of sickness or injury of any employee, to employ a physi- 
cian and to act upon his advice in the care and treatment of such 
employee, and in a proper case to place the employee in a hospital 
maintained by the United States, or, if there should be none such 
AA ithin reach, to place him in a private hospital and to pay the ex- 
pense of his care and treatment therein. 

The employees' compensation act of May 30, 1908 (35 Stat., 556), 
]irovides for continuing the pay of any artisan or laborer injured in 
the employ of the United States without his own negligence, while 
engaged, among other things, " in the construction of river and 
harbor or fortification work." 

Hold, that the medical treatment in this ca>e related to the services 
already rendered under the employee's contract, and was not com- 
pensation for the injury which was provided for in the act of May 
30. 1908, or an enlargement of the relief granted by said act. and 
that the bill might be approved for pavment. 

(5-251, J. A. G., Sept. 8, 1913.) 



MILITARY INSTRITCTION: Issue of arms and equipment to high schools. 

The question was sul)mitted as to whether the Government favored 
the giving of military instruction to students of high schools and 
whether it provided aid in the form of equipment for such schools. 
Section 1225, Revised Statutes, authorizes the detail of officers of the 
Army and the issue of arms, etc., for militaiy instruction "upon the 
application of any established military institute, seminary or acad- 
emy, college or university within the United State<, having capacity 
to educate, at the same time, not less than 150 male students." 

Held, that schools of the public-school system did not come within 
the description "any established military institute, seminary or acad- 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 295 

emy, college or llni^•ersitJ "" within the meaning of those terms as used 
in said section of the Revised Statutes, and that the Government offi- 
cials could not provide aid in the form of military equipment for 
instruction at a high school. 

'56-320, J. A. CI., Sept. 19, 1913.) 



MILITARY RESERVATIONS: Regulating- the practice of medicine tliereon; 
license for lighthouse pui'poses. 

A contagious disease had broken out in the family of a lighthouse 
keeper upon the Fort Moultrie, S. C, military reservation, and a 
civilian physician who attended the family failed to report the dis- 
ease or to place the family in quarantine, in consequence of which the 
disease was transmitted to the family of a soldier residing in the 
vicinity. The only record in the office as to the occupancy of any 
portion of said reservation for lighthouse purposes was a letter to 
the Secretary of the Treasury stating that authority would be granted 
for the Lighthouse Board to place two range beacons and a keeper's 
dwelling on the reservation, but there was no record that the land 
occupied for such purposes was ever transferred away from the War 
Department. Paragraph 302, Manual for the Medical Department, 
1911, regulates the practice of civilian physicians on military reserva- 
tions and places upon commanding officers of posts the duty of taking 
proper steps for checking the spread of infectious or contagious 
diseases. 

Held, that the ground occupied for lighthouse purposes still re- 
mained a part of the reservation and continued subject to such regu- 
lations of the War Department governing military reservations as 
were not inconsistent with the permission granted to occupy said 
premises: Held further^ that ample authority was granted by the 
regidations for regulating the practice of civilian physicians upon 
said reservation and for establishing quarantines thereon. 

(80-541.32. J. A. G., Aug. 15. 1913.) 



PRISONERS: Expense of holding military, by civil authorities; appropria- 
tion chargeable. 

A soldier while absent from his company without leave was ar- 
rested by a constable as a deserter. On l)eing notified of the arrest, 
the company commander telegraphed the constable to hold the pris- 
oner and await further instructions. Later a military guard was 
sent to the place where the soldier was held in custody, to whom the 
constable delivered the prisoner. No charge of desertion was en- 
tered upon the comii^iny's rolls against the soldier and no sufficient 
evidence appeared to show that he was in fact a deserter. 

Held, that all expenses properly incurred by the constable after the 
receipt of the telegram from the company commander to hold the 
prisoner for further instructions, including a reasonable compensa- 
tion for guarding the prisoner, as well as reimbursement for cost of 
meals and lodgings on his account, were chargeable to the Ignited 
States and should be paid from the appropriation for contingencies 
of the Armv. 

(26-260, J. A. G., Sept. 6, 1913.) 



296 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

PUBLIC PROPERTY: Donation of building on military reservation to be 
used for public worship. 

A chaplain in the Army, under permission from the post and 
department authorities, constructed a chapel on a military reserva- 
tion from private subscriptions solicited by him, Avitli the under- 
standing that the chapel would be available for the use of all chap- 
lains who might be stationed at the post, without regard to denomi- 
nation, and that upon completion the building Avould be presented 
to the United States. After completion a formal tender of the build- 
ing to the (lovernment was made. 

The act of May 31, 1902 (32 Stat., 282), authorizes the Secretary 
of War to permit the construction by the Young Men's Christian 
Association of such buildings as their work for the promotion of the 
" welfare of the garrisons may require." 

Field., in view of the construction heretofore placed upon said act to 
the effect that it should be regarded as giving the assent of Congress 
to the construction of buildings for strictly nonsectarian uses if with- 
in the purposes specified, although not constructed by the particular^ 
body named in the statute, that the Secretary of War might properly 
accept the building tendered, for the purposes stated, and that there 
was no necessity for an act of Congress accepting the same. C. 22340, 
J. A. G. O., April 17, 1908. 

(80-815.1. J. A. G., Sept. 25, 1913.) 



TERRITORIES: Public lands in Porto Rico; iiai'bor areas. 

The Chief of the Bureau of Insular Affairs asked Avhether the 
words '' harbor areas " appearing in section 13 of the act of April 12, 
1900, providing revenues and a civil government for Porto Eico (31 
Stat., 80), could be construed to mean those areas bounded by harbor 
lines approved by the Secretary of- War. Said section provided that 
certain described property in Porto Rico acquired by the United 
States under the cession from Spain, "but not including harbor areas 
or navigable waters," should be placed under the control of the 
government established bv the act, to be administered for the benefit 
of the people of Porto Rico, and power was given the legislative 
assembly created by the said act to legislate with respect to all such 
matters as it might deem advisable, subject to limitations imposed 
upon all its acts. Afterwards the insular government claimed owner- 
ship, though without specific grant, of a large amount of public do- 
main by reason of the former grant of some measure of autonomy by 
the Spanish Constitutional Monarchy, and accordingly the act of 
July 1, 1902 (32 Stat.. 731), authorized the President, Avithin one 
year after the approval of the act, to make such reservations of public 
lands and buildings belonging to the TTnited States in Porto Rico as 
he might deem advisable for public purposes, and further provided 
that— 

''All the ]:)ublic lands and buildings, not including harbor areas and 
navigable streams and bodies of water and the submerged lands 
imderlying the same, owned by the United States in said island and 
not so reserved be, and the same ai'e hereby, granted to the govern- 
ment of Poito Rico, to be held or disposed of for the use and benefit 
of the people of said island." 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 297 

Held, that the term '' harbor areas'' was used in the two acts in the 
same sense; that the hmdward limit of such areas w^as the line of 
ordinary low-water mark, which line, though irregular and indefinite 
and changing by accretion, erosion, or avulsion, marked the boun- 
daries of Federal ownership, and that a definite or more regular one 
could not be chosen for convenience by fixing harbor lines or other- 
wise, without authority of Congress. 

(92-300, J. A. G,, Sept. 15, 1913.) 



TKANSPORTATION: Liability of common carriers for the loss of goods 
received for sliipm.ent. 

Property of the United States was delivered at the freight depot 
of a railroad company by various dealers, who obtained shipping 
receipts bearing the notation "Government bill of lading to follow." 
The shipping directions sent to the various dealers had directed the 
said notation, and no information was furnished indicating any usage 
or custom to ship in advance of the execution of the Government. bill 
of lading, save that one item of the property in question was shipped 
in this manner. The Government bill of lading was mailed from 
the office of the depot quartermaster, but before it had had time to 
reach its destination said property was destroyed by fire w^hile at 
said depot. 

Held, that it was not intended that the property should be shipped 
prior to the execution of the Government bill of lading, and that the 
carrier was justified in the view that said notation on the shipping 
receipt was equivalent to instruction to hold the property for a Gov- 
ernment bill of -lading. Held further, that as the property was not 
delivered and accepted for immediate shipment, the liability of the 
railroad company was that of warehouseman only and not that of a 
common carrier. 

(80-013, J. A. G., Sept. 19. 1913.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office cf the Judge Advocate General.) 

APPROPRIATIOKTS : Availability for transportation of material used in 
the manufacture of engineer equipment. 

The question was submitted for decision as to whether the cost of 
transportation of lumber and other material used in the fabrication 
of pontoons or other engineer equipment should be charged to the 
appropriation " Engineer equipment of troops " or to the appropria- 
tion " Transportation of the Army and its supplies." 

Held, that in view of the fact that the appropriation for engineer 
equipment of troops providing for the purchase of pontoon material 
made no provision for its transportation, the authority for such 
transportation from said appropriation could not be implied, espe- 
cially in view of the appropriation made for the transportation of 
the Army and its supplies; and that in the specific case presented the 
transportation of the material purchased was a proper charge 
against the appropriation for Army transportation. 

(Comp. Geo. E. Downey, Sept. 5! 1913.) 



298 DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENERAL. 

GRATUITY PAY: Six months, on death of soldier; desig'nation of bene- 
ficiary. 

A soldier died in the service from a disease incurred in the line of 
dutv and not the result of his own misconduct. The act of May 11, 
1908 (35 Stat., 108), as amended by the act of March 3, 1909 (35 
Stat., 735), provides in such cases for the payment to the widow of 
such soldier " or to any other person previously designated by him " 
of an amount equal to six months' pay of the soldier at the rate he 
was receiving at the time of his death. On the date of the soldier's 
last enlistmeiit he executed a beneficiary card in which he designated 
a certain person by name as his beneficiary, likewise calling her his 
wife and giving her address. After his death it appeared that the 
person so named was not his wife, who resided at another place and 
bore a different Christian name and from whom he was separated 
at the time of his death. 

Held'^ that if a deceased soldier leaves a widow but designates 
another as his beneficiary, the gratuity is payable to the latter instead 
of to the widow, and that if in the case considered the person desig- 
nated could be ascertained, although erroneously described as his 
wife and possibly given a wrong name, she would be entitled to the 
gratuity provided by law. 

(Comp. Geo. E. Downey, Aug. 28, 1913.) 



HEAT AND LIGHT ALLOWANCE: Officers on foreign service; validity of 
regulations. 

The act of March 2, 1907, fixing the numl^er of rooms to which 
each officer of the xVrmy was entitled as quarters, further provided 
(34 Stat.. 1167) that—' 

"Hereafter the heat and light actually necessary for the author- 
ized allowance of quarters for officers and enlisted men shall be fur- 
nished at the expense of the Ignited States under such regulations 
as the Secretary of AVar may prescribe." 

Paragraph 1060, Army Regulations 1910, specified the number of 
rooms to which each officer was entitled and the fuel alloAvance per 
room in cords of oak wood. Paragraph 1052 of said regulations pro- 
vided that — 

" Each officer or noncommissioned officer entitled to and occupy- 
ing public quarters, or quarters other than public which are heated 
by a separate plant, will he furnished at the expense of the United 
States with the quantity of fuel set forth in the table of allowances, 
paragraph 1060. * * * "\"\liere an officer or noncommissioned 
officer is occupying quarters other than public, not heated by a sepa- 
rate plant, or for which it is impracticable to furnish fuel in kind, 
the Quartermaster's Department will pay the owner or authorized 
agent of such quarters for the heat at the rate of $4 a cord for the 
fuel allowance for the number of rooms to which the rank of the 
officer or noncommissioned officer entitles his as set forth in the 
table of allowances, paragraph 1060." 

An amendment was added to this regulation under date of June 
22, 1912, as follows: 

'• Wliere an officer or noncommissioned officer on detached S(M-\ice 
in a foreign country occupies quarters other than public, tlie Quar- 



DIGEST OF OPIXIONS OF THE JUDGE ADVOCATE GENERAL, 299 

tcrmaster's Department will pay the owner or aiithoiized a£>'ent of 
Ruch (juarters for the heat furnished in accordance with the pre- 
scribed allowance for the number of rooms to which the rank of the 
officer or noncommissioned officer entitles him, at the local i-ates at 
the place where he is serving."' 

The Auditor for the War Department submitted his decifeion hold- 
ino- that said regulations were void in so far as the^' authorized the 
furnishing of fuel for the use of Army officers in excess of that actu- 
ally necessary for the quarters they occupied, not exceeding the num- 
ber of rooms to which they were entitled by law, and that unless the 
paragraphs were amended so as to fix approximately the value of the 
lieat actually necessary it was the duty of the accounting officers to 
fix such allowances regardless of the regulations. The particular 
case was cited of an Army officer serving as a military attache 
abroad whose fuel allowance was computed upon the value of oak 
wood at the point of service, or at the rate of about $18 per cord. 

Held., that ujion the evidence submitted the conclusion would not 
at present be adopted that the fuel allowances prescribed in the regu- 
lations were largely in excess of the quantities of fuel actually neces- 
sary for heating the authorized allowance of quarters for officers, and 
nntil the Secretary of War had had time to consider and amend said 
regulations the accounting officers would continue to assume that the 
quantities of fuel therein prescribed did not exceed the quantities 
necessary. 

With reference to the payment of the value of the fuel allowance 
to officers on detached service in foreign countries. Held., that the 
amendment to the regulations authorizing such payment at the local 
rates of fuel at the place where the officer is serving, should be in- 
terpreted as requiring, in a case to which the regulation applies, a 
computation based upon the value of the equivalent of the wood 
allowance in the fuel actually used at the local price of such fuel 
and not upon the price of oak wood at such place where the same was 
not actuallv used for fuel. 

(Asst. Comp. W. W. Warwick, Sept. 23, 1913.) 



PAY OF OFFICERS: Foreign-service pay while traveling abroad. 

An officer of the Army was directed, as a member of a cavalry 
board, to proceed to Berlin, Germany, and take staticm at that place 
" for the purpose of observing and studying the cavalry branch of 
the German Army," and also of the armies of other countries enumer- 
ated. The board was further directed to "make such journeys be- 
tween Berlin, Germany, and points in the countries herein named as 
may be necessary." In accordance with these orders the officer left 
Berlin and traA^eled to various points in the countries named in his 
orders. Upon the completion of his duties at one of said points he 
received an order that upon the completion of his duties abroad per- 
taining to the cavalry board he should repair to Washington, D. C., 
for temporary duty. He complied with this order by returning di- 
rectly to the United States from the point last named without re- 
turning to his station in Berlin. 

Held, that the duties performed by the officer at the various places 
visited were incidental to his assignment to his station ut Berlin, so 



300 DIGEST OF OPIXIONS OF THE JUDGE ADVOCATE GENERAL. 

that his station remained at the Latter phioe until he left for the 
Ignited States, and that the officer should be considered as having 
been assigned to and as having retained station at Berlin within the 
meaning of the act of March 2. 1901 (31 Stat., 1903), during the 
period in question and not as having been in a traveling status. 

Held., therefore, that he was entitled to the increased pay for for- 
eiarn service until his arrival in the United States. 

^(Comp. Geo. E. Downey, Sept. 10, 1913.) 



QTJAFvTSRS : Commutation of, v^'-hile en temporary duty; surrender of 
quarters. 

An officer of the Army while occupying quarters at an Army post 
was ordered to report in person to the Chief of Staff, Washington, 
D. C, for temporary duty. The auditor disailoAved payment of 
commutation of quarters while ih^ officer was on duty in Washington 
because it did not appear that he was directed to surrender his 
quarters during his temporary absence from the post. It appeared 
that said quarters were not occupied during his absence by any 
member of his family and the same could have been assigned to 
other officers. 

Held., that an order directing an officer to surrender his quarters 
during his temporary absence was not necessary under the circum- 
stances to entitle him to commutation of quarters at his temporary 
station, and as there was no reason, so far as the officer was con- 
cerned, why these quai-ters might not have been assigned to some 
(jther officer, he was entitled to the commutation paid. The disallow- 
ance of the auditor w^as therefore Teversed. 

(Comp. Geo. E. Downey, Sept. 10, 1913.) 

An Army officer was relieved from recruiting duty and detailed 
to obtain military information abroad. He was directed to repair to 
Washington, D. C, and report in person to the Chief of Staff for 
temporary duty in his office, and at the expiration of said duty to 
proceed to his station abroad. Commutation of quarters during his 
sta}'^ in Wasliington was disallowed on the ground that the tempo- 
rary duty had Ijeen performed while the officer was in the status of 
changing station and while he had no station. 

Held., that the officer's orders clearly assigned him to temporary 
duty at Washington before going to his foreign station, and that, 
being on duty without troops at a station where there were no public 
quarters, he was entitled to commutation therefor. 

(Comp. Geo. E. Downey, Sept. 10, 1913.) 



TRANSPORTATION: Of attendant in charge of horses; land-grant deduc- 
tions. 

The Government shipped three horses, in charge of an attendant, 
from Foit Worth, Tex., by way of New Orleans, La., to Washington, 
D. C, under an agreement previously made with the railroad com- 
pany to accei)t thei'efor — 

"the lowest net rates lawfully available as deriAcd through deduc- 
tions on account of land-srrant distance from a lawful rate filed Avith 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 301 

the Interstate Commerce Commission applying- from point of origin 
to destination at time of the movement." 

The Auditor settled both for the freight and for the attendant on 
the basis of rates from point of shipment by way of Cairo, 111., in 
order to obtain the benefit of the longest land-grant deduction to 
which the Government was entitled. East of both Cairo and Xew 
Orleans the attendant was entitled to be carried free. The railroad 
company claimed for the transportation of the attendant at the net 
rate from Fort Worth to New Orleans, on the ground that the trans- 
portation was a passenger and not a freight movement, and should 
not be governed by the same considerations that fixed the lowest 
freight rate, which the company had agreed to accept, citing pas- 
senger classification notice, general exceptions, paragraph D, which 
provided that — 

" Net fares established via land-grant lines through Cairo and 
Poplar Bluff will not be equalized by other routes." 

Held^ that the transportation of the attendant was an incident 
to the transportation of the horses and constituted an item in the 
general cost of such transportation, although as to the railroad com- 
pany the revenue therefrom might be considered as " passenger 
revenue." The Auditor's settlement was therefore affirmed. 

(Comp. Geo. E. Downey, Sept. 12, 1913.) 



TEANSPOitTATION: Commodity and class rates. 

On revision of the action of the Auditor for the War Department 
on a claim for additional freight on a Government shipment, there 
appeared to be tariff authority for class rate as applicable as a pro- 
portionate rate and a commodity rate of equal authority affecting the 
shipment. Paragraph 7 (a), Tariff Circular No. 18-A, of the In- 
terstate Commerce Commission, provides that — 

"" In every instance where a commodity rate is named in a tariff 
upon a commodity between specified points such commodity rate is 
the lawful rate and the only rate that may be used with relation to 
that traffic between those points, even though the class rate or some 
combination may make lower. The naming of the commodity rate 
on any article or character of traffic takes such article or traffic out of 
the classification and out of the class rates between the points to 
which commodity rate applies." 

Held^ that the commodity rate named in the tariff was the hiwful 
rate to be applied to the shipment between the points involved 
although in excess of the class rate between said points on the ship- 
ment. 

(Comp. Geo. E. Downey, Sept. 16, 1913.) 



TRANSPORTATION: Of personal bag-gage of officers traveling under a 
mileage status. 

The Auditor for the War Department submitted to the Comp- 
troller his decision that there was no authority of law for the trans- 
portation at public expense of personal baggage accompanying an 
officer on a journey for which he received mileage, regardless of 



302 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXEEAL. 

whether snch journey was on tomporury duty, on temporary change 
of station, or on a permanent change of station, and that so much of 
paragraphs 1138 and 1151. Army Reguhitions, 1910. as authorized the 
transportation of excess baggage under such conditions was void. 

Said paragrapli 1138 of the Regulations provided for the trans- 
portation at public expense of the personal baggage of officers travel- 
ing under orders up to 150 pounds, wdiere less than that amount was 
transported free for each passenger, and provided also for the trans- 
portation of personal baggage in excess of 150 pounds under certain 
conditions. Paragraph 1151 specified the amount of baggage and 
household effects that might be transported for an officer at public ex- 
pense upon change of station, which amount was in excess of that 
usually transported free of charge under regular fares. 

Held, that the term '' baggage "' had two significations : First, 
articles which a traveler requires or takes with him on a journey for 
his ])ersonal use or convenience and with reference to his immediate 
necessities or to the ultimate purposes of his journey, and second, to 
the portable equipment, including tents, clothing, utensils, and other 
necessaries of the Arm}^; that Congress, in appropriating for the 
transportation of the Army and its supplies, including transportation 
of the troops " and their baggage, and the cost of packing and 
crating" the same, had reference to the latter character of baggage, 
which was the only kind of baggage for which the law Jiad made 
provision for shipment at public expense, except as personal baggage 
was included in the mileage allowance; and that there was no law 
wdiich authorized the transportation at puljlic expense of baggage 
as the term was used in the first sense under any circumstances out- 
side of the mileage allowance. With this explanation the decision 
of the Auditor was approved, but in view of the fact that payment 
for transportation of baggage in the personal sense had been the 
long-continued practice, payments made by disbursing officers not 
later than September 24, 1913, being otherwise correct, would be 
passed to their official credit. 

(Asst. Comp. W. W. AVarwick. Sept. 19. 1913.) 



DECISIONS OF COURTS. 

(Digests prepareil in tlie office of the .Judge Advocate Cleneral.) 

COURTS-MARTIAIi: Composition of court; jurisdiction over officers of 
the Philippine Scouts. 

An officer of the Philippine Scouts was tried by a general court- 
martial composed of officers of the Regular Army, and sentenced to 
be discharged from the ser\ice of the United States and to serve a 
term at hard labor. 

The seventy-seventh article of war provides — 

" Officers of the Regular Army shall not be competent to sit on 
courts-martial to try the officers or soldiers of other forces, except as 
provided in article seventy-eight." 

The seventy-eighth article relates to officers of the Marine Corps 
serving on courts-martial with officers of the Regular Army when 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 303 

detached for service with the latter. On a petition for writ of habeas 
corpus — 

Ileld^ That the Philippine Scouts were not " other forces " within 
the meaning of the seventy-seventh article of war. The writ was 
therefore denied. 

{Atkinson v. Stewart^ Supreme Court, Philippine Islands, Nov. 8, 
1912.) 

NATIONAL HOME FOR DISABLED VOLUNTEER SOLDIERS: Jurisdic- 
tion over; trustee process. 

An action of assumpsit on account annexed was brought in a State 
court in Mhich action the National Home for Disabled Volunteer 
Soldiers was summoned as trustee. The principal defendant de- 
faulted. The National Home had entered into a written contract 
with the principal defendant for the construction of certain impro\e- 
ments, and evidence was introduced tending to show a balance due 
such principal defendant in the hands of the treasurer of the Home 
at the time of the service of the writ upon the alleged trustee. The 
court followed the rule that the National Home could not be charged 
as trustee, for the reason that it was a disbursing agent of the United 
States Government. On appeal from plaintiff's exceptions to that 
ruling, held^ that — 

1. The principle that the sovereign can not be sued is predicated 
upon the condition that it has not consented to be sued, which it 
may do. 

2. The National Home for Disabled Volunteer Soldiers, estab- 
lished under act of Congress March 21, 1866 (U Stat., 10; U. S. 
Eev. Stat., sec. 4825 et seq.), is not subject to trustee process in an 
action brought in a State court; the institution not being properly 
regarded as having its place of business "within the State" within 
the trustee process statutes, since the State ceded to the United States 
jurisdiction over the lands on which the home is situated. 

{Brooks flardirair Co. v. Greer^ Supreme Judicial Court of 
Maine, 87 Atl. Kep., 889.) 



BULLETIN 35. 

Bulletin 1 ' WAR DEPARTMENT, 

No. 35. J W Asnii'HATo:^, lYoc'emher 7, 1913. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of October, 1913, and of ceilain decisions 
of the Comptroller of the Treasury, is published for the information 
of the service in general. 
[2094269, A. G. O.] 
By order or the Secretary or War : 

LEONARD WOOD, 
Major General, Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ABMY ORGANIZATION: Promotion of chaplain; counting service in 
the Volunteer Army. 

A person was appointed a chaplain in the Regular Army in June, 
1908. He requested that his service as chaplain in the Volunteer 
Army from May 14, 1898, to February 22, 1899, be counted as service 
toward the period of seven vears required under the provisions of the 
act of April 21, 1904 (33 Stat., 226), for his promotion to the grade of 
captain. Said act, after making provision for the promotion of cer- 
tain chaplains from the grade of captain to that of major, provides — 

" That the remaining chaplains shall have the grade, pay, and al- 
lowances of captain, mounted, after they shall have completed seven 
years of service: And provided further^ That all persons who may 
hereafter be appointed as chaplains shall have the grade, pay, and 
allowances of first lieutenant, mounted, until they shall have com- 
pleted seven years of service." 

Held, that the statute requires seven years of service as chaplain 
in the Regular Army as a condition precedent to advancement to the 
grade of captain, and that the officer was not entitled to have his 
volunteer service counted in computing the seven years of service 
which he must complete prior to his advancement to the grade of 
captain. 

(6-229.3, J. A. G., Oct. 28, 1913.) 



CONTRACTORS: Responsibility for losses occurring before acceptance of 
work; provision for protecting against loss by fire pending acceptance. 

A contract for the construction of a crematory provided that the 
contractor would be required '* to maintain and operate the crematory 

304 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENEEAL. 305 

Avithoiit cost to the Government for a period of one month, and dem- 
onstrate its ability to produce the required results," and further that 
the contractor would " be held responsible for all damages to the 
buildings whether from fire or other causes during the prosecution of 
the work and until the same is finally accepted." During the test con- 
templated by the contract and before acceptance by the Government 
the crematory was damaged by fire to the extent of $300. 

Uelcl^ that as the plant had not been accepted when the damage 
occurred, the responsibility for the loss should be placed upon the 
contractors. 

(79-600, J. A. G., Oct. 16, 1913.) 



COURTS-MAETIAL: Jurisdiction of summary and special courts; reduc- 
tion in rank. 

The act of March 2, 1913, relating to courts-martial, provides that 
(37 Stat., 722) — 

" Summary courts-martial shall have power to adjudge pimish- 
ment not to exceed confinement at hard labor for three months or 
forfeiture of three months' pay, or both, and in aclditiqon thereto re- 
duction to the ranks in the cases of noncommissioned officers and re- 
duction in classification in the cases of first-class privates," and the 
same limitation as to reduction in rank applies to special courts- 
martial. 

Held., that a cook, not being a noncommissioned officer nor a first- 
class private, could not be reduced by sentence of a summary or of a 
special court-martial. 

(30-73-1, J. A. G., Oct. 1, 1913.) 



LI2>IE OE DUTY: Soldier on pass; contributory negligence. 

A soldier was absent from his post on pass. Two trains left the 
railroad station at the same time, one bound for his post and the other 
for other points. About the time for the trains to leave and before 
his pass had expired, the soldier was seen running up the street of the 
town toward the depot. The train going to the place not his station 
Avas just pulling out, and in endeavoring to board a freight car on 
said train he missed his hold, fell under the car, and received injuries 
from which he died the next day. 

Helcly that under the circumstances it might be safely assumed 
that the soldier mistook his train and was trying to board the train 
going to his station w^hen he fell and was injured. Held further.^ 
that while an attempt to board a moving train is attended with dan- 
ger, the amount of danger and consequent negligence in attempting 
to board it varies directly with the speed of the train ; that the sol- 
dier in attempting to board the starting train was not necessarily 
guilty of such negligence as would cause him to be considered outside 
of a pension status; and that his death might be considered as occur- 
ring in line of duty and as not being the result of his own misconduct, 

(5^022, J. A. G., Oct. 7, 1913.) ^ 
93668°— 17 20 



306 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

PAY OF ETTLISTED MEN: Continuous service; counting' service en May 
11, 1908; disciaarge for the convenience of the Government. 

A soldier enlisted May 15, 1005, and was honorably discharged 
May 3, 1907, for the con\enience of the Government; he reenlisted 
the next day and was honorabl}^ discharged from this enlistment 
June -28, 1908, by purchase, ancl reenlisted August '20, 1908. His 
descriptive and assignment card shows the following: 

"Last discharge June 28, 1908, * * * continuous service at 
that date three years, one month and three days." 

On this record he was taken up by his troop commander as in his 
second enlistment period and paid accordiniilv. 

The act of May 11, 1908, provides (35 Stat.,' 109) — 

''But any soldier who receives an honorable discharge for the 
convenience of the Government after having served more than half 
of his enlistment shall be considered as having served an enlistment 
period within the meaning of this act: that the present enlistment 
period of men now in service shall be determined b}' the number of 
years continuous service they have had at the date of approval of 
this act under existing laws, counting three years to an enlistment." 

Held, that the soldier on May 11. 1908, not ha^•ing then served three 
years continuously, should be regarded as serving in his first enlist- 
ment period and must ser^e out his last enlistment and be honorably 
discharged therefi'om. or be honorably discharged for the convenience 
of the Government after serving more than one-half thereof, and 
have reenlisted again within three months, before he can be regarded 
as having entered his second enlistment period: and that the soldier 
Avas erroneously taken up in his second enlistment period on his 
reenlistment August 20, 1908. 

(72-515.1, J. A. G., Oct. 21, 1913.) 



POST EXCHANGES: Leasing- of portions of military reservations for 
the benefit of. 

Portions of a military reservation had been leased upon shares to 
private individuals, the rental in kind to be turned over to the post 
exchange of the post, to be used by said exchange in maintaining a 
dairy and for feeding animals, including a small number of hogs. It 
was the intention to increase the number of cows so that the dairy 
would be able to supply organizations and individuals with dairy 
products, and also to increase the herd of hogs so as to supply or- 
ganizations with meat. 

Held, that while it has been the practice to permit military organi- 
zations to cultivate limited areas of reservations to supplement the 
rations furnished by the Government for the subsistence of enlisted 
men, it has not been the practice to lease Government lands under 
agreements providing for rental in kind and permitting the ap- 
propriation of the rentals by such organizations: and that the facts in 
this case disclosed the necessity for restricting the activities of post 
exchanges in business enterprises within nu)re limited bounds. 

(40-100, J. A. G., Oct. (i, 1913.) 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEXERAL, 307 

PUBLIC PROPERTY: Personal; loaning of, to private individuals. 

Upon consideration of the question as to whether or not the Secre- 
tary of War had authority to loan articles of equipment, garrison 
equipage, army supplies, etc., to private individuals or to State or 
municipal authorities, on occasions of public ceremony, parades, etc., 
of national or local character. 

Ileld^ that under authority given Congress in the Constitution of 
the United States to dispose of and to prescribe regulations respect- 
ing the territory or other property belonging to the United States, 
Congress had made elaborate provision for the care and accounta- 
bility of public property, and that it would be contrary to the pur- 
pose of these provisions to loan public property to private individuals 
or to local or municipal authorities, thus committing the custody and 
care of such property to others than those authorized by law. Dig. 
Op. J. A. G., 1912, p. 908, I. I. C. 

(80-140, J. A. G., Oct. 1, 1913.) 



PUBLIC PHOPESTY: License to take water from Government pipe line. 

Application was made by the owner of property adjoining that 
owned by the United States in Porto Rico to tap a 4-inch Govern- 
ment water main supplying Henry Barracks, for the purpose of ob- 
taining water for his home. 

Ileld^ that the request may not be granted. 

(80-810.8, J. xV. G., Oct. 14, 1913.) 



PURCHASES: Of material of American manufacture; fortification act. 

The fortification act of February 13, 1913 (37 Stat., 674), pro- 
vides — 

'" That all material purchased under the provisions of this act 
shall be of American manufacture, except in cases when in the judg- 
ment of the Secretary of War it is to the manifest interest of the 
United States to make purchases in limited quantities abroad, which 
material shall be admitted free of duty.'' 

Held., that as the statute did not define the meaning of the term 
" limited quantities,'' that question must be determined in a par- 
ticular case by the officer in charge of the execution of the law, and 
that no definite limit could be fixed upon to apply in all cases. 

Held further^ that the statute lays down no rule for determining 
the question of whether it 'is to the manifest interest of the United 
States to make a particular purchase from abroad; that the officer 
charged with the execution of the law should take into consideration 
all the circumstances, including the item of cost, in determining this 
question ; and that if the articles of domestic manufacture proposed 
to be furnished do not meet the requirements of the service, or if 
the price charged therefor should be inireasonable, taking into con- 
sideration the price of the foreign article with the duty added, the 
purchase in limited quantities might be made abroad. 

(76-202, J. A. G., Apr. 5 and Oct. 13, 1913.) 



308 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL, 

QUARTERMASTEB CORPS: Employment of civilians as teamsters to take 
the places of enlisted men. 

It was proposed to employ civilians as teamsters temporarily to 
take the places of enlisted men of the Quartermaster Corps detailed 
for that purpose who might be absent in desertion or without leave 
or undergoing confinement as punishment. 

Section 4 of the act of August 24, 1912 (37 Stat., 593), provided 
that not to exceed 4,000 civilian employees of the Quartermaster 
Corps should be " replaced permanently by not to exceed an equal 
number of enlisted men of said corps," and further authorized the 
enlistment of men in said corps for the purposes of the act, the same 
to be assigned to such duties pertaining to said Corps as the Secre- 
tary of Yv^ar might prescribe. The law excepted from its operation 
certain civilian emploj^ees, among them " civil service employees and 
emjjloyees of the classified service," and as to the further employment 
of civilians provided — 

" Nothing in this section shall be held or construed to prevent the 
employment of the class of civilian employees excepted from the pro- 
visions of this act or the continued employment of civilians included 
in the act until such latter employees are replaced by enlisted men 
of the Quartermaster Corps." 

Held, that civilian teamsters did not come within any class ex- 
cepted from operation of the law, and that when once they had been 
replaced by enlisted men of the Quartermaster Corps it was not com- 
petent to again employ civilians even temporarily to take the places 
of enlisted men who had replaced the civilians first employed, ex- 
cept perhaps under emergent conditions. 

(6-224.1, J. A. G., Oct. 11 and 23, 1913.) 



BETIBED OFFICERS: Exercising- command at post from which regular 
garrison has been removed. 

The question was presented as to whether a retired officer of the 
Army could be placed on duty in charge of a post left temporarily 
without its usual garrison by a movement of the troops. In a post 
thus left temporarily without its usual garrison there will ordinarily 
remain a surgeon, either of the Medical Reserve Corps or a contract 
surgeon, one or more enlisted men of the Hospital Corps, a num- 
ber of enlisted men of the Quartermaster Corps, and probably some 
enlisted men of the line of the Army. 

The act of April 23, 1904 (33 Stait., 264), provides that— 

" The Secretary of War may assign retired officers of the Army, 
with tlieir consent, to active duty in recruiting * * * and to 
staff duties not involving service with troops * * *," 

Held, that as a retired officer placed in charge of a post under the 
conditions stated must exercise command over enlisted men of two 
or more branches of the service and also over any officer of the Medi- 
cal Corps remaining at the post, the proposed assignment would in- 
volve the exercise of command and also service Avith troops, and 
Avould nf)t be an assignment " to staff duty not invohing service Avith 
troops; " and that the proj)osed assignment Avould not be authorized. 

Advised further^ that there was no other statute Avhich would serve 
the purpose in vieAv. 

(88-600, J. A. G., Oct. 28, 1913.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 309 

TAXATION: Personal property of retired Army officers on duty at an 
agricultural college. 

A retired officer of the Army on duty at an agricultural college 
represented that he had been assessed and required to pay taxes on his 
liousehold furniture, money in bank, and everything he owned, just 
" as every other citizen of the town " was supposed to pay. He 
alleged that he was not a citizen of the State, county, or city and had 
no voice in the management of their affairs, did not perform any 
duties except as ordered, and was not in any business. 

Recommended^ that the officer's attention be directed to the follow- 
ing extract from the Digest of Opinions of the Judge Advocates 
General, 1912, page 1021, B and D : 

"■ But though a retired officer can not legally be taxed by State 
or municipal authorities on account of his Army pay as property or 
income, he is subject to be taxed for other property owned by him 
like any other citizen * * *, 

"An officer or soldier of the Army, though not taxable officially, 
may be and often is taxable personally. He is not taxable by a State 
for his pay, or for the arms, instruments, uniform clothing, or other 
property pertaining to his military office or capacity, but as to house- 
hold furniture and other personal property, not military, he is (ex- 
cept where stationed at a place under the exclusive jurisdiction of 
the United States) equally subject with other residents or inhabit- 
ants to taxation under the local law." 

(90-152.2, J. A. G., Oct. 14, 1913.) 



TFvANSPORTATION": Change of station allowance of baggage; civilian 
employee of the Engineer Department; appropriation. 

A draftsman in the employ of the Engineer Department at Large 
permanently changed his station under orders dated May, 1909, on 
account of improvement of St. Johns River, Fla. Afterw^ards, at his 
OAvn expense, he crated and on August 23, 1913, shipped from his old 
to his new station his personal baggage or effects within the amount 
allowed by paragraph 1151, Army Eegidations, 1910, for shipment 
for a civilian employee on change of station. He made no applica- 
tion either to the Quartermaster Corps or to any officer of the Engi- 
neer Corps for such packing and transportation. Paragraph 1150 
of the Anny Regulations provides that on change of station the 
authorized allowance of baggage will be turned over to the Quarter- 
master's Department to be packed and crated for transportation as 
freight by ordinary freight lines. 

Ileld^ that the regidations contemplate that the Quartermaster 
Corps shall render the service of packing, crating, and shipping the 
change of station allowance of baggage; that the employee should 
have applied for such services to the clistrict engineer; and that not 
having clone so, he could not be reimbursed in money for the expense 
incurred by him. 3 Comp. Dec, 304; 6 Id., 84 and'317; 15 Id., 731; 
IS Id., 415. 

Held further^ that the regulations contemplate the shipment at or 
about the time of transfer of station and not a continuing obligation, 
and that the delay of over four years would, unless special conditions 
existed, be sufficient to defeat the claim. 



310 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

Held further, that the expense of such shipment, if allowable, 
should be borne by the appropriation for the improvement of St. 
Johns River, Fla. 

(1(^-400, J. A. G., Oct. 15, 1913.) 



TRAVEL ALLOWAlviCES: Of enlisted men on discharg-e; transpoi'tation 
of effects to their homes. 

Certain soldiers of the Army were discliarged while thej^ were 
temporarily absent on duty from their permanent stations, and it 
was proposed to transport their personal effects left at their perma- 
nent stations to points in the United States where they were to go, 
or to their homes. 

Held, that the act of August 24, 1912 (37 Stat, 576), in granting 
certain travel allowances on discharge to enlisted men, which included 
the transportation of the usual amount of travel baggage to accom- 
pany the soldier, by implication, forbade the furnishing of anything 
in addition thereto, and that the transportation of the soldier's effects 
from their permanent stations to different points in the United 
States under the conditions stated was not authorized 

(91-242, J. A. G., Oct. 7 and 20. 1913.) 



DECISIONS OF THE COMPTROLLEE OE THE TEEASTJRY. 

(Digests prepared in thi' office of the Judge Advocate General.) 
COMMUTATION OF QUARTERS: Officer on leave and relieved from duty. 

An officer of the Army while on duty with the Quartermaster 
Corps at a station where he was entitled to and received commutation 
of quarters, obtained a leave of absence for one month to take effect 
at a future date. Before availing himself of the leave he was relieved 
from duty with the Quartermaster Corps and directed to retain his 
station at said place until furtlier orders. After entering upon his 
leave and before its expiration he was assigned to a regiment of Cav- 
alry and directed on the expiration of his lea\e to proceed to join his 
organization. At the expiration of his leave he returned to his for- 
mer station and on the next day proceeded to join his new station. 

Held, that having been relieved from duty at his station, he was not 
entitled to commutation of quarters during the period of his absence 
on leave, his case coming within the second clause of paragraph 1324, 
Army Regulations, 1910. See also decision of June IS, 1913 (W. D. 
Bul.'Xo. 29. p. 19). 

(Comp. Geo. E. Downey, Oct. 13. 1913.) 



COMMUTATION OF QUARTERS: Detail for service with the Philippine 
Constabulary. 

An officer of the Army was paid commutation of quarters during 
the period he was on duty with the PhilipiMiie Constabulary, under 
detail in pursuance of the act of January 30, 1903 (32 Stat., 783), 
which proxides — 

'" That officers of the Army of tlie ITnited States may be detailed for 
ser\ice as chief and assistant chiefs, the said assistant chiefs not to 



DIGEST OF 0PINI0X3 OF THE JUDGE ADVOCATE GENERAL. oil 

exceed four in number, of the Philippine Constabulary, and that dur- 
ing the continuance of such details the officer serving as chief shall 
have the rank, pay, and allowances of brigadier general, and the 
officers serving as assistant chiefs shall have the rank, pay, and allow- 
ances of colonel." 

The Army appropriation act of August 21, 1912 (37 Stat., 575), 
provides — 

*' for commutation of quarters to commissioned officers * * * on 
duty without troops and stationed where there are no public quar- 

Held., that as officers of the Army detailed under said act of Janu- 
ary 30, 1903, for duty with the Philippine Constabulary do not per- 
form military service in the line of their duty as Army officers but are 
performing civil duty, they should be treated as officers on leave of 
absence (10 Comp. Dec, 839; Dig. Op. J. A. G., 1912, p. 103) ; and 
that the officer was not entitled to the commutation of quarters paid 
him. 

(Comp. Geo. E. Downey, Oct. 22, 1913.) 



ENLISTED MEN OF THE ARMY: Deduction from pay for absence from 
duty on the 31st day of the month. 

A private soldier was in hospital from October 29 to November 8, 
both dates inclusive, during which time he was not entitled to pay by 
virtue of the proviso in the act of August 21, 1912 (37 Stat., 572), to 
the effect that no officer or enlisted man in the active service shall 
receive pay for a period of absence from actual duty on account of 
disease resulting from his own intemperate use of drugs or alcoholic 
liquors or other misconduct. Section 6 of the act of June 30, 1906 
(31 Stat., 763), after providing that persons employed in the service 
of the United States on an annual or monthly compensation can not 
be paid for the 31st day of the month, adds the proviso — 

" That for one day's unauthorized absence on the 31st day of any 
calendar month one day's pay shall be forfeited." 

Held., that pay should be deducted for 11 days, including the 31st 
day of the month. 

(Comp. Geo. E. Downey, Oct. 3, 1913.) 



ENLISTED MEN OF THE ARMY: Use of deposit made by soldier with 
Army paymaster. 

Section 1305. Eevised Statutes as amended, permits an enlisted 
man to make deposits of his pay with an Army paymaster, and pro- 
vides that such deposits shall not be subject to forfeiture by a sen- 
tence of court-martial, but shall be forfeited by desertion, and shall 
be exempt from liability for the soldier's debts. 

The fifty-fourth article of war provides that — 

" Every officer commanding in quarters, garrison, or on the march 
* * * if, upon complaint made to him of officers or soldiers beat- 
ing or otherwise ill-treating any person, disturbing fairs or markets, 
or committing any kind of riot, to the disquieting of the citizens of 
the United States, he refuses or omits to see justice done to the 



312 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

offender and reparation made to the party injured, so far as part of 
the offender's pay shall go toward such reparation, he shall be dis- 
missed from the service or otherwise punished as a court-martial may 
direct." 

A private soldier was dishonorably discharged, with forfeiture 
of all pay and allowances, having $5 deposited with a paymaster of 
the Quartermaster Corps. His final statements showed indebtedness 
to the United States less than the amount of said deposit, and also a 
charge for individual reimbursement, under the fifty-fourth article 
(»f war, amounting to $73. 

Held., that the Government assumes no liability for abuses com- 
mitted in the manner pointed out in the fifty-fourth article of war, 
■A.\\iX that the balance of the deposit remaining, after satisfying the 
debts due the United States, should be paid to the discharged soldier. 

(Comp. Geo. E, Downey. Oct. 30, 1913.) 



PHIVATE PROPERTY: Construction of the act of March 3, 1885; loss of 
private horse in the military service. 

The act of March 3, 1885 ('23 Stat., 350), authorizes the proper 
accounting officer of the Treasury, for the purpose of reimburse- 
ment, to examine into, ascertain, and determine the value of certain 
private property belonging to officers and enlisted men of the Army 
and which may be lost or destroyed in the military service under the 
f oUow^ing conditions : 

•' First. When such loss or destruction was without fault or negli- 
gence on the part of the claimant. 

" Second. Where the private property so lost or destroyed was 
shipped on board an unseaw^orthy vessel by order of any officer au- 
thorized to give such order or direct such shipment ; and 

" Third. Where it appears that the loss or destruction of the 
private property of the claimant was in consequence of his having 
given his attention to the saving of property belonging to the United 
States which w^as in danger at the same 'time and under similar cir- 
cumstances * * *." 

The Auditor for the W^ar Department submitted a proposed 
change of construction of said act. as follows : 

"I am of opinion, and so decide, that the existing construction 
of said act should be so modified as to authorize reimbursement only 
in the cases where the loss falls wdthin the ' second ' and ' third ' 
clauses of said act, without fault or negligence on the part of the 
claimant." 

The Comptroller disapproved the proposed change of construc- 
tion, but announced himself in accord with the first seven of the con- 
clusions stated in 3 Comp. Dec. 638, setting forth the conditions which 
entitle a person to recover for the value of property lost or destroyed 
as in said act specified, and expressed his dissent from the following 
statement in the 19 Comp. Dec, 534: 

" The law^ — the act of 1885, supra — does not require that the prop- 
erty, for which reimbursement is to be given the officer or soldier 
when lost or destroyed, shall have been lost due to any exigency of 
the service or any incident peculiar to the military service. All the 
law now requires is that it ])e lost or destroyed while in the military 



DIGEST OF OPINIOXS OP THE JUDGE ADVOCATE GENEEAL. 313 

service and owned by an officer or enlisted man in the service, and 
that siich loss is without fault or negligence on the part of the claim- 
ant." 

The Comptroller further referred with approval to the decision of 
the Assistant Comptroller of the Treasury in 18 Comp. Dec, 47, hold- 
ing that the class of private property to which said act of March 3, 
1885, relates, does not include horses belonging to officers and en- 
listed men in the military service, and that the accounting officers 
of the Treasury were without jurisdiction to receive and audit the 
claim of an officer or enlisted man for the loss of a horse in said serv- 
ice, thus overruling the decision in 19 Comp. Dec, 532, which had 
overruled the decision of the Assistant Comptroller. 

(Comp. Geo. E. Downey, Oct. 20, 1913.) 



TELEPHOITE SERVICE: Installation of, in private quarters; common 
use of trunk line. 

Three telephone trunk lines connected between the exchange of a 
navy yard and the city and service outside, and were used in common 
by public .official telephones and telephones installed in the private 
({uarters of officers at the yard. The telephone com.pany made a sepa- 
rate charge for the use of telephones in the private quarters of offi- 
cers, and the question was presented as to the manner of adjusting 
the payment of bills for the use of the trunk line. 

Held, that the quarters of an officer at the navy yard must be re- 
garded as a private residence within the meaning of section 7 of the 
act of August 23, 1912 (37 Stat., 414), prohibiting payment for tele- 
phone service installed in any private residence or private apart- 
ment : and that the paymaster was not authorized to pay the entire 
amount of the bill for the use of the trunk lines from Government 
funds and then to reimburse said funds from money afterwards col- 
lected from officers in whose quarters the telephones were installed, 
but that the charge for the rental of the trunk lines used in connuon 
should be apportioned between the officers having telephones in their 
quarters and the Government according to the number of telephones 
used by each, respectivelv. 

(Comp. Geo. E. Downey, Oct. 6, 1913.) 



THAWSPOBTATION : Excess baggage on change of station; mileage 
status. 

A disbursing quartermaster of the Army submitted for advance 
decision the question of the legality of payment for transportation of 
200 pounds of excess baggage belonging to an officer changing sta- 
tion and transported on the same train. The transportation was fur- 
nished in July, 1913. It was assumed that the officer was entitled to 
and had received mileage for his travel. In a decision of the Comp- 
troller's office of September 19, 1913, it was held that there was no 
authority of law for the transportation at public expense of the per- 
sonal baggage accompanying an officer on a journey for which he 
receives mileage, regardless of whether the journey was on temporary 
duty, temporary change of station, or permanent change of station; 



ol4 DIGEST OF OPTXIOXS OF THE JUDGE ADVOCATE GENERAL. 

but that as the practice of paymg for tlie transportation of excess 
baggage had l)een long continued, payments for such transportation 
by disbursing officers made not later than the '24th of Septemlier, 
1913, if otherwise correct, would be passed to their official credit. 

HeJd., that as no payment had been made, the case fell within the 
decision of September 19. 1913, and there was no authority for 
making the payment. 

(Comp Geo. E. Downey, Oct. 1, 1913; see also decision of Oct. 18, 
1913.) 



BULLETIN 38. 

Bulletin 1 WAR DEP. 

No. 38. J Washington, December 19, 1013. 

The following- digest of opinions of the Judge Advocate General 
of the Army for the month of November, 1913, including some opin- 
ions for the month of October, 1913, not heretofore publisiied ; of cer- 
tain decisions of the Comptroller of the Treasury; and of one decision 
of a court, is published for the information of the service in general. 
(2094269 A— A. G. O.) 
By order of the Secretary of War : 

LEONARD WOOD, 
Major General, Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OE THE JUDGE ADVOCATE GENERAL. 

APPROPRIATIONS: Lump-sum; promotion of employees paid from; 
m.eclianics and artisans; change of duties. 

It was proposed to increase the compensation of a packer at 
Omaha, Nebr., paid from a lump-sum appropriation, above the 
amount which he had been receiving during the preceding fiscal year 
for the same service, as coming within the exception to section 4 of 
the act of March 4, 1913 (37 Stat., 790), rending as follows: 

" This section shall not apply to mechanics, artisans, their helpers 
and assistants, laborers, or any other employees whose duties are of 
similar character and required in carrjnng on the various manufac- 
turing or constructing operations of the Government." 

Held, that the packer could not be classed as a mechanic or as an 
artisan, and did not come within the class of employees excepted 
from the act, and that he was, therefore, subject to the general 
restrictions of the law. 

It was also proposed to promote two clerks who had had additional 
duties imposed upon them since the beginning of the fiscal year, 
and who had been paid and were to be paid from lump-sum appro- 
priations. 

Field., that in order that the additional compensation might be paid 
the additional duties should be of a different character from those 
performed by them during the preceding fiscal year, but that the 
question of whether these duties were of such different character, or 
were of sufficient importance in a given case to justify the increase 
in compensation, was one of administration having in view the 
importance of the work and its permanency. 

(5-075, J. A. G., Nov. 7, 1913; see also decision of Nov. 24, 1913.) 



COMMUTATION OF QUARTERS: OfRcers assigned to station away from 
a hospital where they were to perform duty; service with troops. 

Certain medical officers attached for duty to the Department Hos- 
pital were directed to take station at Honolulu, H. T., where they 

315 



316 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

liad no duties to perform, and not at the hospital \Yhere their duties 
were located. 

Held^ that to entitle an officer to commutation of quarters it must 
appear that he was properly on duty without troops at a station 
where there were no public quarters available for his occupancy, 
til at service at hospitals is not regarded as service without troops, and 
that as the officers had no duty to perform in Honolulu, they were 
]iot entitled to commutation of quarters. Held further^ that the act 
of March 2, 1901 (31 Stat., 901), authorizing the Secretary of War 
to determine what shall constitute duty without troops within the 
meaning of the law relating to the payment of commutation of 
(juarters, did not authorize him to declare as service without troops 
that which clearly is not of such character, but only vested him with 
the function of determining the degree of military control or disci- 
idine which might be exercised as between officers or by officers over 
enlisted men, to constitute such service. 
(72-330, J. A. G., Nov. 8, 1913.) 



COInTTRACT SUHGEONS : Cost of subsisting while messing on vessel was 
temporarily suspended. 

A contract surgeon of the Army had been subsisted^ at public 
expense in the saloon mess of an Army transport on which he was 
performing duty, and desired an increase of $1 per day in compen- 
sation as reimbursement for subsistence during a short period while 
messing on the vessel had been suspended, during which time he 
subsisted himself. Said amount was the price charged to officers 
paying for their own subsistence in the saloon mess. 

Contract Surgeons are employed under authority of paragraph 
1413. Army Regulations, 1910, vrhich provides: 

" Civilian physicians * * * may be employed as contract sur- 
geons * * * under contracts entered into by or with the author- 
ity of the Siu-geon General of the Army. They are entitled to the 
transportation and fuel allowances of first lieutenants, and when on 
duty at a post or station where quarters in kind are provided by the 
United States they will be entitled to the quarters allowed by regu- 
lation * * *." 

The contract in this case followed the regvdation. 

Ileld^ that the purport of the regulation and contract was to place 
a contract surgeon in the position of a commissioned officer as to his 
compensation, except as limited by the statute, and as a commis- 
sioned officer in a similar situation would not have been entitled to 
nny allowance for his subsistence, there w^as no authority for allow- 
insT it to a contract surgeon. 

^6-227.5, J. A. G., Nov. 25, 1913.) 



CONTRACTORS: For material to be used on public works; treatment of 
employees. 

Complaint was made that the Government was employing a con- 
tractor for the manufacture of material to be used at a lock and dam, 
which mistreated the men working for it " contrary to all rules of 
justice and right." 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 317 

Ileld^ that neither the hiw nor the contract for the construction of 
the lock and dam authorized the Department to interfere with the 
control by the contractor of its plant, and as the law stood the 
Department could not insert in any contract for future work a pro- 
vision which would purport to give the Government control of such 
matters, since the effect would be to restrict competition and lead to 
higher prices, contrary to the intent of the law which requires con- 
tracts to be let to the lowest bidder and under conditions which will 
insure reasonable prices. 

(76-710, J. A. G., Nov. 24, 1913.) 



CONTRACTS: Excuses for delays in performance; purchase against con- 
tractor; flood conditions. 

A contract for delivery of fresh beef at Columbus Barracks, Ohio, 
gave the Government the right in case of failure of the contractors 
to make deliveries as required by their contracts — 
'' to supply by purchase in open market or otherwise any deficiency 
resulting from such failure." 

The contractors having failed to deliver beef in accordance with 
their contract, there was purchased in open market a certain quan- 
tity of fresh beef, and the difference between the purchase price and 
the contract price was deducted from the amount due the contractors. 
The latter raised the question as to whether the deduction was proper 
in view of the fact that the failure to deliver was the result of delayed 
trains due to flood conditions which prevailed at the time. 

Held, that as the contract contained no provision excepting failure 
in delivery caused by delays in transit on the part of transportation 
companies, there was no authority for granting the relief requested. 

(76-600, J. A. G., ^ov. 10, 1913.) 



CONTRACTS: Cancellation for failure to comply with, terms of; rights 
of the United States. 

A contract was entered into with a firm for supplying fresh meat 
at an Army post. The prices did not allow much margin for profit, 
and difficulty was experienced in enforcing compliance with the 
specifications relative to weights and condition of meat delivered. 
Frequent rejections resulted for failure to supply meat according to 
specifications, and frequent purchases were made against the con- 
tractor for failure to supply meat under the contract. It was, there- 
fore, recommended that the contract be annulled, and that proposals 
be issued for a new contract, the firm in question not to be awarded 
contracts in the future. It was conceded that the price under the 
contract was less than that which could probably be obtained by 
reletting the contract, and that aside from the trouble of enforcing 
compliance with the existing contract, the action proposed would not 
be for the best interests of the Government. 

Held, that the contract could not legally be annulled ; that the con- 
tractors should be held to a compliance with its terms ; and that upon 
failure to do so. the usual remedies reserved by the contract should 
be invoked against them. 9 Op. Atty. Gen. 81. 

(76-731, J. A. G., Nov. 17, 1913.) 



31S DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

COUBTS-MARTIAL: Constitution of; member as witness for the prose- 
cution. 

The act of March 2. 1013 (37 Stat., 722 : W. D. Bull. No. 7. Mar. i;'), 
1913, p. 30), provides that— 

'• * * * the commanding officer of a territorial '■' '•' '•' de- 
partment, '•' * * may appoint general courts-martial whenever 
necessary; but * * * j^o officer shall be eligible to sit as a mem- 
ber of such court when he is the accuser, or a witness for the prose- 
cution."' 

A private soldier who was brought before a general court-martial 
for trial, challenged a member of the detail for the court on the 
ground that he was a witness in the case, had had to do with the 
preferring of the charges, and had taken part in investigating the 
case. The officer challenged replied that he had taken no part in the 
investigation of the case, had formed no opinion as to the guilt or 
innocence of the accused, and believed that he could give a true ver- 
dict in the case. The challenge was not sustained by the coui't, and 
the officer was sworn as one of six members of the court for the trial 
of the case. Subsequently the officer was called as a Avitness for the 
prosecution, was sworn, and gave testimony. It did not appear that 
he was excused from further duty as a member of the court upon l>e- 
ing called as a witness for the prosecution. 

f^ In another case a soldier was brought before a general court-mar- 
tial for trial upon four charges, to three of which he pleaded guilty, 
but to one, a charge of desertion, he pleaded not guilty but guilty of 
absence without leave. In the course of the trial a member of the 
detail for the court who had been sworn as a member of the court, 
was called as a witness for the prosecution, was SAvorn, and gave testi- 
mony. It did not appear that he was excused from further duty as 
a member of the court upon being called as a witness for the prose- 
cution. 

Held, that a court composed either wholly or partly of officers 
statutorily ineligible to sit as members thereof, is not a lawfid court; 
and that when a member who has become statutorily ineligible par- 
ticipates thereafter in the trial, the court thereupon ceases to be a 
lawful one, and is therefore incompetent to proceed with the trial, 
to arrive at a finding, or to adjudge a sentence. 

(30-435, J. A. G., Oct. 11 and Xov. 13, 1913.) 



C0URT3-MAETIAL: Jurisdiction of special courts-martial; capital offenses. 

A private soldier pleaded guilty before a special court-martial 
to the charge of sleeping on post, in violation of the Thirty-ninth 
Article of War, and was sentenced to be confined at hard labor for 
three months and to forfeit the sum of $10 per month for the same 
period. The Thirty-ninth Article of War provides that — 

''Any sentinel who is found sleeping upon his post, * * * shall 
suffer death, or such other punishment as a court-martial may direct." 

The act of March 2, 1913, establishing special courts-martial, pro- 
vides (37 Stat, 722) that— 

'"Special courts-martial shall have power to try any person sub- 
ject to military law, except an officer, for any crime or offense not 
capital made punishable by the Articles of War." 



DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENERAL. 319 

Ileld^ that tlie offense charged in said case, )>eing a capital one, 
was bejrond the jurisdiction of a special court-martial, and that the 
proceedings, findings, and sentence were illegal and void. Advised^ 
therefore, that the soldier be released from confinement under the 
sentence, and that proper entries be made upon muster and pay rolls 
and other records to indicate that the sentence was illegal and void. 

(30-750, J. A. G., Oct. 13, 1913.) 



DETACHED SERVICE: Assignment to duty on transports, of officers 
traveling thereon who are not eligible for detached service in general. 

Upon inquiry as to whether officers traveling on transports in 
compliance with orders to join their companies from detached service 
or in compliance with orders to change station from one company 
assignment to another, but who are ineligible for detached service 
in general b}^ reason of the detached-service legislation of August 
21, 1912 (37 Stat., 571), may be assigned to duty on board said 
transports. 

Held, that the assignment of duties to be performed during the 
regular course of his journey by an officer en route from detached 
service to a company assignment or en- route from one company as- 
signment to another, can not be regarded as in violation of the 
detached-service legislation of August 21, 1912, if the due prosecu- 
tion of the journey be not interfered with ; that is, the detached- 
service legislation does not prevent the proper superior from requir- 
ing of an officer thus engaged any duty which will not serve to 
divert him from his proper route in complying with his orders to 
change station or to delay him in reporting for duty in person under 
his companv assignment. 

(91-100, J. A. G.. Nov. 6 and Xov. 19, 1913.) 



DISCIPLINE: Punishment; computation of time of sentence and abate- 
ment. 

In the case of a prisoner under sentence approved October 9, 1913, 
of imprisonment for five months, inquiry was made as to whether 
the proA-ision in paragraph 957, Army Regulations, 1910, as amended, 
that in computing abatement of terms of confinement " all months 
will be assumed to consist of 30 days," refers to abatement only or to 
both abatement and sentence. 

Held, that said provision is to be construed as applicable in the 
computation of both sentence and abatement; and that the prisoner's 
sentence would expire on February 13, 1911, in case he earned the 
maximum abatement for good conduct. 

(30-823.1, J. A. G.. Nov. 5, 1913.) 



DONATIONS: Of personal property to the United States. 

The citi.^ens of a certain city desired to present a national flag and 
pennant to a new dredge of the United States to show their apprecia- 
tion of the fact that the dredge had been named for their city. 

Held, that the flag and pennant might lawfidly be accepted by 
the Government for use on the dredge. Dig. Op. J. A. G., 1912, p. 
912; C-29257, Mar. 9, 1912. 

(80-111, J. A. G., Nov. 11, 1913.) 



320 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

MEDICAL RESERVE CORPS: Beginning of active service and pay; rati- 
fication of assignment of oflSicer to active service. 

Section 7 of the act of April 23, 1908 (31 Stat., 68). provides for 
a Medical Keserve Corps, to be composed of graduates of reputable 
schools of medicine, citizens of the United States, who shall, upon 
an examination to be prescribed by the Secretary of War, be found 
qualified for service in said corps. The members of this corps re- 
ceive no pay unless called into active service. Section 8 of said act 
provides that — 

" In emergencies the Secretary of War may order officers of the 
Medical Reserve Corps to active duty in the service of the United 
States in such numbers aS the public interests may require," pro- 
viding the officers are willing to accept said service. 

iVn officer of the Medical Eeserve Corps v^'as assigned by special 
orders to active duty, but before receipt of such orders he entered 
upon active duty under orders of the chief surgeon of a department 
v;ho acted by authority of a telegram from the Surgeon General of 
the Army. 

Ueld^ that the officer could only receive pay after he had entered 
upon duty by proper authority, either at the post where he was as- 
signed to duty or by starting to go there in pursuance of such orders; 
lidd further^ that the action of the department surgeon in placing 
the officer on active duty before the receipt of special orders from 
the War Department, might be ratified by the Secretary of War, 
in which event the officer would be placed in the same situation as 
though his employment had originally been authorized by the Sec- 
retary. 

(^227.4, J. A. G., Nov. 13, 1913.) 



RETIRED OFFICESS: Assignment to educational institution; right to 
allowances as mounted officer. 

A major on the retired list of the Army was assigned to active duty 
as professor of military science and tactics at the university of a 
State, pursuant to the provisions of section 1225, Revised Statutes, 
relating to the assignment of officers of the Army to duty as pro- 
fessors, etc., at educational institutions, as amended by the act of 
November 3, 1893 (28 Stat., 7), which provides that— 

'" Officers on the retired list of the Army may upon their own 
application be detailed to such duty and when so detailed shall 
receive the full pay of their rank." 

The act of March 3, 1909 (35 Stat., 738). provides with reference 
to retired officers so detailed, that they shall "receive the full pay 
and allowances of their rank." with certain limitations upon the pay 
of officers above the grade of major. 

Par. 3, Cir. 81, W.^ D., September 30, 1908, specifies that— 

" Officers of the Army on the retired list who may be detailed to 
active duty * * * as professors of military science and tactics at 
educational institutions, are not required to be mounted." 

The officer claimed that his duties re(]uired him to be mounted, and 
requested that his particular service be declared to be of that char- 
acter and that he be allowed forage and stabling for two horses kept 
by him and used on said duty. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 321 

licld^ that there was nothing in the character of the service as 
described in the law which required that an officer detailed as pro- 
fessor or instructor at an educational institution should be mounted; 
that the Secretary of War was not authorized to give such service a 
character different from that implied in the law by declaring the same 
to require the services of a mounted officer; and that the officer's 
request should be denied. 

(72-140, J. A. G., Nov. 12, 1913.) 



RETIREMENT: Of enlisted men; counting time for service in the Philip- 
pine Scouts. 

An officer of the Philippine Scouts who had had previous service 
as a commissioned officer but not as an enlisted man, first in the State 
Volunteers and then in the United States Volunteers in the Spanish 
War, desired to know whether his service as an officer in the Philip- 
pine Scouts could be counted as double time in computing his time 
for retirement as an enlisted man of the Army, under the act of 
March 2, 1907 (34 Stat., 417), in connection with the acts of June 30, 
1902 (32 Stat., 512), and June 12, 1906 (34 Stat., 248). The act of 
May 26, 1900 (31 Stat, 209), provides that : 

'' Hereafter in computing length of service for retirement credit 
shall be given the soldier for double the time of his actual service in 
Porto Rico, Cuba, or in the Philippine Islands." 

Held^ that the acts allowing service with the Philippine Scouts to 
be counted in computing time necessary to enable an enlisted man of 
the Regular Army to retire, are applicable only to commissioned 
officers of the Philippine Scouts who have had previous service as 
enlisted men in the Regular Army, and who may return to the ranks 
of the Regular Army ; and that should this officer resign his commis- 
sion in the Philippine Scouts and enlist in the Army, he would not 
thereafter, upon application for retirement, be entitled to count his 
commissioned service in the Philippine Scouts. 

(88-SOO, J. A. G., Oct, 25, 1913.) 



BECISIONS OF THE COMPTEOLLEE OF THE TEEASTJEY. 

(Digests prepared in the office of the Judge Advocate General.) 

ACCOUNTABILITY: Disbursement of public funds; manner of payment 
in foreign countries. 

A decision was requested as to whether or not a disbursing officer 
was authorized to pay a creditor of the United States residing in a 
foreign country by bill of exchange or draft purchased from a bank, 
in a case where payment was to be made in foreign currency or 
V\here the purchase had been made at a given price in the countrj?^ of 
purchase. 

Ileld^ that the purchase of a bill of exchange or draft to be sent to 
a public creditor residing in a foreign country was not authorized as 
a payment of the creditor, and that payment of such creditors should 
continue to be made as indicated in-the decision of December 4, 1907 

93668°— 17 21 



322 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

(14 Comp. Dec, 339) ; that is, in the manner prescribed in circular 
No, 52, Treasury Department, of July '29, 1907, or by international 
post-office money order. 

(Comp. Geo. E. Downey, Nov. 6, 1913.) 



COMMUTATION OF QUARTERS: Service witli troops while temporarily 
absent from station at v/hich no duties were to be performed. 

Certain officers of the Army while on duty at posts where they 
were not entitled to commutation of quarters, were directed to talce 
station at Manila, P. I., where no quarters were available for their 
occupancy and w^here they had no duties to perform. Upon arrival 
there they were immediately directed to proceed to various points 
mentioned for temporary survey duty with troops. It was not nec- 
essary for them to maintain or have quarters in Manila, and after 
the performance of the temporary duty they were to return to 
the posts where they had at first been stationed. Commutation of 
quarters was claimed as being temporarily absent from their station 
at Manila on duty in the field. 

Held, that the orders directing the officers to take station at a place 
Avhere they had no duties to perform and while their duties required 
them to be elsewhere, could not operate to give them a right to com- 
mutation of quarters, and the action of the Auditor for the War 
Denartment disallowing such commutation was affirmed. 

(Comp. Geo. E. Downey, Nov. 10, 1913.) 



DISBURSING OFFICERS: Crediting payments made under rulings in 
force at the time; heat and light allowances. 

A disbursing officer made payments for heat and light supplied to 
an Army offi-cer's family living in San Francisco, Cal., from Novem- 
ber 16, 1911, to January 13, 1912, while the officer himself was sta- 
tioned wdth his regiment in the Canal Zone, upon the certificate of 
the officer that the public quarters occupied by him were not heated 
and lighted at Government expense and that no part of his heat- 
and-light allowance for said period was otherwise drawn by him. 
In a decision of the Comptroller's Office, dated October 13, 1910, it 
was held that where an officer on duty in the Philippines occupied 
quarters not heated at Government expense, the fuel allowance to 
which he M^as entitled in the Philippines might be issued to his 
family in the United States. This decision was subsequently over- 
ruled by decisions rendered subsequently to the time when tlie above 
payments were made. 

Held, that the later decisions could not operate to deny credit to 
a disbursing officer who had made payments for heat and light fur- 
nished under regulations and decisions in force at the time of pay- 
ment; and that credit should be given him for such payments, not 
in excess of the amounts allowable under such regulations and de- 
cisions; but that this rule would not necessarily apply to the officer 
who received the unauthorized payments, and in the future the 
accounting officers Avould be warranted in taking into consideration 
such unauthorized payments in settling for anything which might 
be due the oflicer. 

(Comp. (Jeo. E. Downey, Nov. 13, 1913.) i 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEISTEEAL. 323 

PAY OF ARMY: Increase for foreign service; physical presence in the 
United States. 

The act of June 30, 1902 (32 Stat., 512), provides: 

"That hereafter the pay proper of all commissioned officers and 
enlisted men serving beyond the limits of the States comprising 
the I"^nion and the Territories of the United States contiguous 
thereto shall be increased ten per centum for officers and twenty 
per centum for enlisted men over and above the rates of pay proper 
as fixed by law for time of peace, and the time of such service shall 
be counted from the date of departure from said States to the date 
of return thereto." 

The Auditor for the War Department submitted a modification of 
the existing construction of said law b_y deciding that no officer or 
enlisted man of the Army wdio is physically present in the United 
States can receive foreign-service pay under said act. The Auditor's 
decision was approved, thus reversing the decision of the Assistant 
Comptroller of June 28, 190T (13 Comp. Dec, 884), but that no in- 
justice might be done, held, that where payments had theretofore 
been made by disbursing officers under the former ruling of the 
CoroptroUer such payments would be passed to their credit. 

(Comp. Geo. E. Downey, Nov. 20, 1913.) 



REPAIR OF BUILDINGS: Of the Engineer Department Used as barracks 
and quarters; appropriation. 

Two buildings of the Engineer Department located at Fort Flag- 
ler, Wash., not being required foi' immediate use by that Department, 
were turned over to the quartermaster of the post and w^ere used as 
quarters for troops. It was contemplated that the buildings would 
be again needed for the Engineer Department, which department, 
for that reason, declined to relinquish control of them, but refused to 
make interior repairs. 

Held, that the payment for the necessary repairs to said buildings 
while so occupied as quarters was authorized from the ap])ropriation 
for "Barracks and Quarters" contained in the act of March 2, 1913 
(37 Stat., 714). 

(Comp. Geo. E. Downey. Nov. 17. 1913.) 



TRANSPORT ATION: Professional books as household effects on changing 
station. 

A railroad company transported the personal property of an officer 
of the Army changing vstation which property consisted, besides 
various articles of equipment and household furniture, of a quantity 
of professicmal books, all apparently loaded into one car. The com- 
pany contended that the professional books were not properly in- 
cluded in household goods entitled to carload ratings, and that pay- 
ment should be made therefor in addition to the carload rate allowed 
for the remainder of the shipment. 

Held, that while for administrative purposes professional books 
were segregated by Department regulations from other household 
goods of an officer changing station, yet as the term was used in rail- 



324 DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENERAL. 

road classification, it embraced all articles which were reasonably 
necessary and proper for the maintenance of a home and included 
professional books. The claim was disallowed. 
(Comp. Geo. E. Downey, Nov. 6, 1913.) 



TRANSPORT ATICN: Party rates where transportation request called for 
a less number. 

A transporation request called for the transportation of nine per- 
sons between two points on first-class limited tickets. But one 
ticket was issued and the men traveled together as a party. There 
was a party rate in force between the points for parties of not less 
than ten, and the party rate for ten persons was less than the total 
of the single fares for nine. 

Held, that there being no party rate in force for nine persons trav- 
eling together, the railroad company was entitled to a single fare for 
each person transported on the request, and that the quartermaster 
was in fault in not issuing a request for a ten-party rate ticket. 

(Comp. Geo. E. Downey, Xov. 14, 1913.) 



OPINION OF THE COURT. 

(Digest prepared in the office of the Judge Advocate General.) 
CONTRACTS: Execution of; enforcing parol contract with United States. 

Section 3744, Eevised Statutes, provides: 

" It shall be the duty of the Secretary of War, of the Secretary of 
the Navy, and of the Secretary of the Interior, to cause and require 
every contract made by them severally on behalf of the Government, 
or by their officers under them appointed to make such contracts, to 
be reduced to writing, and signed by the contracting parties with 
their names at the end thereof." 

An action was brought by the United States to recover damages 
for breach of an alleged contract by which a steamship company 
agreed to furnish two steamers to transport, for the United States 
not less than 8,000 tons of coal from Atlantic ports to San Fran- 
cisco, Cal. 

Held, that such statutory provision was not merely for the benefit 
of the Government, but was mandatory, and hence the United States 
could not recover damages for breach of a steamship company's 
parol contract to carry coal to Pacific ports in accordance with the 
steamship company's bid, where it refused to enter into a contract 
in writing when tendered. 

{New York d' P. R. ^S. S. Co. v. United States, United States Cir- 
cuit Court of Appeals, 206 Fed. Rep., 443.) 



BULLETIN 1. 

[Note.— Bulletin No. 38 is the last of the series for 1913.] 

Bulletin 1 WAR DEPARTMENT, 

No. 1. J Washington, January 20^ 1911^. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of December, 1913, including some previ- 
ous opinions not heretofore published, of certain decisions of the 
Comptroller of the Treasury, and of decisions of courts, is published 
for the information of the service in general. 
[2094269, B— A. G. O.] 
By okder of the Secretary or War : 

LEONARD WOOD, 
Majo7' General, Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Ad'jutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CLAIMS: For assisting in extingiiisliing' a fire on a Government vessel; 
salvage. 

The captain of a private vessel rendered assistance with his vessel 
in extinguishing a fire which broke out on a Government boat, and in 
so doing sustained damages in the loss of personal property, for 
which he claimed compensation. 

Held., that if it be shown that the Government vessel was in real 
danger of destruction or of serious damage from the fire, and the 
service was rendered voluntarily in saving the vessel from such 
danger, the claim might be treated as one in the nature of salvage 
and paid accordingly, provided the service was not rendered as a 
part of the claimant's regular duty. 

(18-400, J. A. G., Dec. 1. 1913.) 



DISCHAB,GE: By purchase; date when right becomes effective; discharge 
away from, permanent station. 

War Department General Order 23 of March 28, 1913, fixed for 
discharges by purchase after 11 years' service a rate of $30 for the 
United States and $80 for the Philippine Islands. Prior to said 
order the rate was $30 for like length of service regardless of place of 
discharge. 

A soldier stationed in the Philippine Islands went on furlough for 
three months, and while in the United States on said furlough and 
two days before the date of General Order No. 23, applied for his 
discharge by purchase. His application having been approved, he 

325 



826 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Wiis discharged April IT, 1913, at Fort McDowell, Cal., to which 
post he had reported for duty three days before, relinquishing the 
balance of his furlough. He was not relieved from duty in the 
Philippine Islands nor assigned to any permanent station in the 
United States. 

Held^ that the soldier's rights should be adjusted as of the date of 
his application, and that he should be charged only the rate in force 
at the time of such application; but that for the purposes of (xeneral 
Order No. 23 he should be regarded as serving in the Philippine 
Islands until his service in the United States had been regularized 
bv assignment to some permanent station. 
" (28-224, J. A. G., Dec. 29. 1913.) 



PARDON: Power of; remission; restoration of files after promotion of 
another ofl&cei\ 

An officer had been sentenced to dismissal, but the sentence was 
commuted by the President to a reduction of 50 files in lineal rank. 
He was afterw^ards promoted, and while serving in another grade 
than that in which he was serving at the time of sentence applied 
for a remission of the sentence reducing him in files. 

Held., that the promotion to another grade of officers who gained 
by this officer's reduction in files rendered the sentence of reduction 
f iiUv executed and ])laced it bevond the power of remission or pardon. 

(68-111.1, J. A. G., Dec. 23," 1913.) 



POSTAL SEHVICE: Use of penalty envelopes in transmitting books be- 
longing to a department headquarters library. 

Section .5 of the act of March 3. 1877, reads in part (19 Stat., 335) : 

" That it shall be lawful to transmit through the mail, free of 
postage, any letters, packages, or other matters relating exclusively 
to the business of the United States." 

The act of July 5, 1884 (23 Stat., 158), extends this provision to all 
officers of the United States Government, not including members of 
Congress, the envelopes in all cases to bear appropriate indorsements 
containing the proper designation of the office from which, or the 
officer from whom, the same is transmitted, with a statement of the 
penalty for its use. 

Ilefd^ that books belonging to the department headquarters library 
such as would be of professional benefit to officers of the Department 
might be sent through the mail under the authority of said statute to 
the officers on duty in the department and mailed by them in return, 
under the official frank of the department. 

(22-020. J. A. G., Dec. 11. 1913.) 



RETIUEMEISTT: Philippine Scouts. 

An officer of the Philippine Scouts applied for retirement under 
the provisions of section 1243, Revised Statutes, claiming that he 
had served over 30 years, 17 on tlie western fi'ontier and l;> in the 
tropics. 



DIGEST OF OPIISTIOXS OF THE JUDGE ADVOCATE GENERAL. 327 

Held., that the law which fixes the pay and allowances of Philip- 
pine Scouts the same as those authorized for officers of like grade in 
the Regular Army, did not include the privilege of retirement, and 
that the retirement of the officer could only be accomplished through 
an act of Congress. Dig. Ops. J. A. G., 1912, p. 087, 5a, 

(6-250, J. A. G., Dec. 2, 1913.) 



RETIREMENT: Promotion for service other than as a cadet; picket duty 
at West Point, N. Y. 

Certain officers of the Army now retired applied for promotion of 
one grade in rank " for services in the Civil War rendered otherwise 
than as a cadet '' under the provisions of the act of April 23, 1904 
(33 Stat. 264), which authorizes the retirement or advancement on 
the retired list of one grade above the rank held at the time of re- 
tirement of officers below the grade of brigadier general who served 
in the Regular or Volunteer forces during the Civil War prior to 
April 9, 1865, " otherwise than as a cadet." Said officers were cadets 
at West Point, N. Y., during the draft riots in New York City in 
1863, and while the academic studies were suspended at the academy 
they were assigned to picket duty with instructions to watch foV 
rioters in boats, who according to rumors, intended to visit and de- 
stroy Cold Spring Foundry, then the largest establishment for mak- 
ing guns in the country, and at the same time to visit and destroy 
West Point. 

Held, following a ])revious opinion of this office (C. 21468, J. A. G., 
May 1, 1907), that the service rendered was service as a cadet, and 
that the request must be denied. 

(88-410, J. A. G., Dec. 5, 1913.) 



TRANSPORTATION: Signing request; delegation of authority. 

A request for transportation issued from the office of a quarter- 
master was countersigned in the name of the quartermaster by the 
post quartermaster sergeant in charge of the office in his absence, 
the post quartermaster sergeant adding his own name. 

Held-y that the regulations contemplate the final issue of transpor- 
tation requests by commissioned officers of the Quartermaster Corps; 
that the law authorizing the appointment of post quartermaster 
sergeants did not authorize such sergeants to perform any duty im- 
posed upon commissioned officers; and that the duty of countersign- 
ing transportation requests required the exercise of judgment and 
discretion which could not be entrusted by the officer to others. Held 
further, that as the officer had ratified the action of the post quarter- 
master sergeant in signing his name to the transportation request, 
no question could be raised as to the validity of a claim for transpor- 
tation furnished thereunder, hut ad "Ised that the practice be discon- 
tinued for the future. 

(94-201, J. A. G., Dec. 10, 1913.) 



328 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

ABSENCE: On account of sickness in family; civilian clerk. 

A clerk in the office of the officer in charge of public buiklings and 
grounds was absent 4 days on account of a death occurring in his 
family. During the year he had already taken 30 days annual leave, 
l)ut had taken but 6^ days leave on account of personal illness, ancl 
had worked 51 hours overtime, or beyond 7 hours per working day. 

Section 7 of the act of March 15, 1898 (30 Stat., 316), requires that 
the heads of the several executive departments shall exact of all 
clerks and employees in their respective departments not less than 
7 hours of labor each day. except on Sundays and public holidays, 
and further provides as follows: 

'' The head of any department may grant thirty days' annual leave 
vvith pay in any one year to each clerk or employe: And provided 
further^ That where some member of the immediate family of a clerk 
or employe is afflicted with a contagious disease and requires the 
care and attendance of such employe, or where his or her presence in 
the department would jeopardize the -health of fellow-clerks, and in 
exceptional and meritorious cases, where a clerk or employe is per- 
sonally ill, and where to limit the annual leave to thirty days in any 
one calendar year would work peculiar hardship, it may be extended, 
in the discretion of the head of the department, with pay, not 
exceeding thirty days in any one case or in any one calendar year." 

Ileld^ That said law made no provision for the granting of absence 
other than as specified, and did not authorize the granting of a leave 
for the cause stated; that it was within the discretion of the head of 
the department to require the so-called overtime work; and that the 
law made no provision for the extension of leave on account of such 
overtime. The claim for pay for the time of such absence was 
disallowed. 

(Comp. Geo. E. Downey, Dec. 8, 1913.) 



APPB-OPK-I ATIONS : Use of; construction. and repair of hospital; estimates. 

The Array appropriation act of March 2, 1913 (37 Stat., 717), 
appropriated: 

" For construction and repair of hospitals at military posts already 
established and occupied * * * and for the construction and 
repair of general hospitals and expenses incident thereto, and for 
additions needed to meet the requirements of increased garrisons, 
$150,000." 

The estimates upon which this appropriation was based contained 
an explanatory note stating the purposes for which the entire sum 
appropriated was to be used. It was proposed to expend a portion 
of this appropriation for the construction of better cantonment ac- 
commodations for the sick at Texas City, Tex. The estimate did 
ndt include provision for the construction of temporary hospitals in 
camp, neither was any express provision therefor made in the appro- 
priation act. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 329 

Jleld^ that said appropriation ^vas not available for the construc- 
tion of temporary hospitals in camp. 
(Comp. (leo. E. Downey. Dec. 8, 1913.) 



COMMUTATION OF QUARTEHS: At temporary station while retaining 
quarters at permanent station. 

An officer in occupancy of public quarters at his permanent station 
was ordered to report to the commandant of the Army Service 
Schools at Fort Leavenworth, Kans., for a special course in tactics, 
and on completion of the same to rejoin his proper station. The 
Secretary of War advised the commandant by telegraph that any 
available quarters might be used for the accommodation of the officer, 
and that if none were available commutation was authorized. The 
commandant reporting that no quarters were available for him, com- 
mutation w^as paid, and the amount having been disallowed by the 
auditor, was refunded by the officer. The officer claimed commu- 
tation by virtue of the provisions of paragraph 1325, Army Regula- 
tions, 1910, which provided that: 

"An officer does not lose his right to quarters or commutation at 
his permanent station by a temporary absence on duty. While he 
continues to claim and exercise that right, he can not legally demand 
quarters or commutation thereof at any other station. 

" The mere fact that an officer's family or his household goods are 
permitted by proper authority to remain in quarters at a military 
station does not prevent the assignment of quarters to him where 
he is actually serving, or debar him from commutation if he is on duty 
without troops at a station w^here there are no public quarters. In 
these exceptional cases commutation of quarters will be allowed only 
on the approval of the general commanding the troops in the Philip- 
pine Islands in cases arising in his command ; in all other cases on 
the approval of the Secretary of War after recommendation by the 
department commander * * *." 

Held., that it was doubtful w-hether the regulation applied to a 
case of this kind, but that if it did, it transcended the law which 
did n«it entitle an officer to commutation of quarters at his tempo- 
rary station in addition to public quarters at his permanent station 
(19 Comp. Dec, 73) ; and that the telegram of the Secretary of War, 
if it be considered as an attempt to authorize paymxCnt of such 
commivtation, was without effect. 

(Comp. Geo. E. Downey, Dec. 23, 1913.) 



CONTRACTS: Bailee for hire; liability of the Government for damages. ^ 

A bargg belonging to a private company w^as in use in connection 
with repairs being made to a certain lock on the Kanawha River, 
W. Va. In unloading a derrick boom the Government engineer lost 
control of his engine and allowed the timber to fall, which broke 
into tv,'o pieces, one piece going to the bottom of the barge breaking 
some boards and causing it to sink. It was reported that the accident 
was partly due to a defect in the broken timber, but it was not shown 
that the engineer was at fault or careless, or that he was incompetent, 
or that the engine w\as defective or out of repair. 



330 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

IleJd^ That the Government, being a bailee for hire, should be 
held only to the exercise of ordinary care and was liable only for 
ordinary negligence in the care and use of the property hired; and 
that it did not become the insurer of the barge, and was not liable for 
damages brought about by unforeseen causes which could not be 
guarded against. Ueld further^ that the liability of the Government 
did not appear from the facts presented, but that it appeared that 
the damage was occasioned by an unavoidable accident for which, 
under the circumstances, the Government was not responsible. 

(Comp. Geo. E. Downey, Nov. 22, 1913.) 



DECISIONS OF TEE COURTS. 

(Digests prepared in tlie office of the Judge Advocate General.) 

EXTRA-DUTY PAY: Service as telegraph operator; sufficiency of desig- 
nation. 

A private soldier of the Hospital Corps was on November 9, 1900, 
placed in charge of the telegraph and telephone office at a general 
hospital b}^ orders of the surgeon commanding the hospital, and 
perfomied the duties of said position until September 25, 1902. At 
no time while performing the duty of telegraph operator was he 
under the supervision of anyone connected with the Signal Gorps, 
but remained under the orders of the medical otiicer commanding 
at the hospital. The muster rolls during the time of this service 
reported him as " telegraph operator." 

Section 1287, Kevised Statutes, provides that: 

"When soldiers are detailed for employment as artificers or labor- 
ers in the construction of permanent military works, public roads, or 
other constant labor of not less than 10 days' duration, they shall 
receive in addition to their regidar pay," certain compensation. 

The act of July 5, 1881 (23 Stat., 110), appropriated for extra-duty 
pay at the rate of 50 cents per day for mechanics, artificers, school 
teachers, and clerks at Arm3% Division, and Department head- 
quarters, and at the rate of 35 cents per dav '*" for other clerks, 
teamsters, laborers, and others." The act of March 3, 1885 (23 Stat., 
359), fixed the rates of compensation as above specified, adding after 
the word laborers '' other enlisted men on extra duty." 

Ileld^ That the last two acts mentioned were intended as amend- 
ments to Section 1287, Revised Statutes, and were not limited to 
the Quartermaster's Department: and that the fact that this man 
was ordered to the particular duty by his superior officer and was 
carried on the rolls as a telegraph operator for the time of his service 
as such, amoimted to a sufficient designation or detail by competent 
military authority to entitle him to extra-duty pay for said service. 
Ilolthaus case, 12 C. Cls., 514; 11 Comp. Dec, 151. The claimant was 
ii^iven judgment for extra-dutv pav at the rate of 35 cents per day. 

{Ross V. United States, No. 21889, C. Cls.. Dec. 1. 1913.) 



PRISONERS: Parole; good-time allowance. 

The act of June 21, 1902 (32 Stat., 897), provides that each pris- 
oner c<mfined in execution of a sentence in any TTnited States pen- 
itentiary, whose record justifies it, shall be entitled to a deduction 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 331 

for good time, commencing from the first day of his arrival at the 
penitentiai-y. The act of June 25, 1910 (36 Stat., 819), dechires 
that every prisoner confined for a term of more than one year, whose 
record shows an obser\'ance of the prison rules and who has served 
one-third of his term, may be released on parole. Section 3 declares 
that the parole shall l3e granted on such terms as the board of parole 
shall prescribe, the prisoner to remain while on parole in the legal 
custody and under the control of the warden of the prison from 
which he is paroled and until the expiration of the term or terms 
specified in his sentence, less such good-time allowance as is provided. 
The act also provides for the retaking of a paroled prisoner who 
has violated his parole, at any time within the term or terms of his 
sentence, and for a hearing before the board, which may revoke the 
order and terminate the parole, ancj. if revoked, the prisoner shall 
serve the remainder of the sentence imposed, the time the prisoner 
was on parole not being taken into account to diminish the time of 
his sentence. 

A petitioner for a writ of habeas corpus was released on parole 
August 12, 1911, in accordance with the act of Congress of June 25, 
1910, having earned 216 days good-time allowance, as provided by 
the act of June 21, 1902. He was returned to confinement in the peni- 
tentiary May 29, 1912, on account of a violation of his parole and 
for failure to faithfully observe the rules governing hlni as a convict 
on parole. It was claimed that his good-time allowance was forfeited 
by a violation of his parole. 

Held., That " legal custody " and '* control '' did not contemplate 
actual custody or confinement of a paroled prisoner, and that such 
a prisoner was not subject to prison rules providing for a forfeiture 
of good-time allowance by a breach of such rules, so that on his 
return for breach of parole he was not subject to a forfeiture of his 
good-time earned, in determining the date of the expiration of his 
sentence. 

{Ex parte Marcil, 20T Fed. Rep., 809.) 



BULLETIN 5. 

BuLLETix \ WAR DEPARTMENT, 

No. 5. j Washington, Fehruary 18^ 1911^. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of January, 1014, of certain decisions of 
the Comptroller of the Trensiiry, and of a decision of a court, is 
published for the information of the service in general. 
[2094269 C— A. G. O.] 
By order or the Secretary of War : 

LEONARD WOOD^ 
Major General., Chief of Staff. 
OrriciAL : 

GEO. ANDREWS, 

Th^ Adjutant General. 



OPINIONS OF THE JUDGE ABVOCATE GENEEAL. 

CONTRACTS: Agreement to transport; liability of the Government. 

A contract was entered into with a company at Fort McDowell, 
Cal., for the installation of a rock-crushing plant, one paragraph 
of the specifications providing that '■■ transportation from Fort Mason 
dock to site at Angel Island will be furnished by the Government," 
except certain articles not involved in the question here presented. 
A box containing belting and an electric switch was delivered by the 
contractor for transportation, and was received on board a vessel 
rmder the control of the Army Transport Service. This box was 
not delivered at its destination, and after strict search could not be 
found. 

Held., that in furnishing the transportation in question the Gov- 
ernment did not assume the liability of a common carrier and was 
not an insurer against the loss of the property, but having under- 
taken to transport the property of the contractor between the points 
mentioned, on failing to do so after due delivery to it for that pur- 
pose, it became liable under its contract for the delivery of the prop- 
erty or for an amount of money sufficient to replace it. 

(76-741, J. A. G., Jan. 9, 19i4.) 



CONTRACTS: Eight-hour law; construction of vessels; public works. 

The eight-hour law of March 3, 191.3 (87 Stat., 720). prescribes an 
eight-hour day for certain kinds of labor upon any })ublic work of the 
United States, with penalties for violations. It was proposed to 
enter into a contract with a company for the construction of certain 
steel barges in connection with the improvement of the Ohio River, 
332 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 333 

the contract providing for a pa^mient of 50 per cent of the contract 
price of each barge when it should have been provisionally accepted 
by the United States, at the builders' yard, when, as stated, the barges 
would be practically completed, and upon such payment would be- 
come the property of the United States. Final acceptance and de- 
livery of the barges was to be made to the contracting officer at Louis- 
ville, Ky. It was desired to know whether work upon the barges 
should be regarded as being rendered upon a public work of the 
United States within the meaning of said act. 

Held., that prior to said partial payment and acceptance the barge 
did not become the property of the United States, and work thereon 
was not rendered upon a public work of the United States within the 
meaning of the statute, but that work done after such partial accep- 
tance, in the correction of any defects that might develop between 
the provisional acceptance and final acceptance, would be rendered 
upon a public work of the United States. 

It was also desired to know whether or not the contract for the con- 
struction of the barge or vessel would be a contract for a public work, 
provided the contract stipulated for payment in a lump sum of the 
entire contract price after final acceptance of the barge. 

Held., that such stipulation would moi;e clearly indicate that the 
title to the vessel would not pass to the United States and that prior 
to acceptance and payment it could not be regarded as a public work 
within the meaning of the statutes. 

(32-213, J. A. G., Jan. 9, 1914.) 



EMPLOYEES: Compensation for injuries; general prisoners. 

A former private in the Army who had been dishonorably dis- 
charged therefrom by sentence of general court-martial desired to 
know whether or not he could get anything on account of his arm 
having been broken while at work in prison at Alcatraz, Cal. 

Held., that it is clear that the injury received by the soldier while 
serving as a general prisoner did not come within the provisions of 
the employees' compensation act of May 30, 1908 (35 Stat., 556), as 
the labor he was performing at the time of his injury was not based 
upon any contractual relation between himself and the Government, 
but was rendered as a punishment for military offenses 

(1&-300, J. A. G., Jan. 21, 1914.) 



HEAT AISTD LI&HT: Sale of fuel allowance to officers' families. 

Armiy Eegulations formerly provided for the issue and sale of the 
fuel allowance of an officer to his family under certain conditions. 
Following the decision of the Comptroller of the Treasury (W. D. 
Bui. No. 1, 1913, p. 35) that the authorized fuel allowance to officers 
could not be issued to their families separate and apart from the 
officers, the Army Regulations upon the subject were amended so as 
to omit provision for such sale and issue. 

Held., that under the authority of the appropriation for regular 
supplies contained in the various Arm}' appropriation acts, sales of 
fuef might still be made to officers for use of their families during 



334 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

their temporary absence from their post or station wliere their fami- 
lies might be located, but that such sale should be made at the cost 
price ajid not at the arbitrary price fixed by the original regulations. 
(72-310, J. A. G., Jan. 3/1914.) 



HEAT AHTD LIGHT: At permanent station; officer absent on temporary 
duty. 

An officer of the Army expected to be absent from his permanent 
station on temporary duty in the field with his regiment, and de- 
sired that his fuel allovrance while he was so absent should be de- 
livered to his family, who would occupy his quarters at his per- 
manent station, he certifying that during such absence he would 
not avail himself of his fuel allowance elsewhere. 

Ilelcl^ that while the law makes no provision for heat and light 
fu.rnished the family of an officer separate and apart from the officer, 
if his family continues to occupy his quarters at his permanent 
station while he is absent on temporary duty, he is entitled to haA^e 
such quarters heated at public expense so long as they are so occu- 
pied, provided his quarters at his temporary station are not heated 
at public expense, and that the request of the officer could be granted. 

(72-315, J. A. G., Jan. 7, 191-1.) 



HEAT AND LIGHT: Furnishing in kind; exceeding regulation allowance. 

It was shown by the report of a commanding officer at a recruit 
depot that a certain public building was only partly occupied as 
quarters for officers, it being occupied a part of the time by only one 
officer, and that in consequence of the size of the building and the 
means employed for heating it the total amount of the fuel allow- 
ance for the offi.cers occupying said building was exceeded. 

Ileld^ that the regulations limiting the quantity of fuel allowed 
to officere for heating quarters occupied by them applies to cases 
where officers undertake to heat their own quarters, and not to cases 
vrhere the burden of heating public quarters is undertaken by the 
Government; and that there was no legal objection to exceeding the 
fuel allowance of the officers occupying said building as quartei-s 
if the manner of heating the same was satisfactory to the Quarter- 
master Corps. 

(72-310, J. A. G., Jan. 8. 1911.) 



PUBLIC PAUKS: District of Columbia; revocable license for buildings 
thereon; Potomac Park. 

Tt was desired to know whether any legal authority existed for 
the granting of a revocable licen.se to a branch of the Smithsonian 
lustitution to occupy a portion of Potomac Park in the District of 
Golumbia for an air-craft field laboratorv, it l)eing the pui-pose to 
construct thereon siu-h small buildings of a temporary character 
as might be necessarv. 

The act of Maich 3, 1897 (29 Stat., 624). set aside the area formerly 
known as Potomac Flats, together with the Tidal Reservoir, as a 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 335 

public park under the name of Potomac Paik "to be forever held 
and used for a park for the recreation and pleasure of the people."' 
The act of August 30, 1800 (;J6 Stat., 396), and of August 24, 191^2 
(37 Stat., 444), prohibits the erection of any building or structure 
upon the public parks of the District of Columbia without express 
authority of Congress. 

Held^ that there was no legal authority by which a revocable 
license for the purposes intended could be granted. 

(80-800, J. A. G., Jan. 3, 1914.) 



BED CKOSS SOCIETY: Mileage to officer assigned to take charge of 
first-aid department. 

The question arose as to wdiether the officer detailed to take charge 
of the first-aid department of the American Red Cross Societv, pur- 
suant to the act of March 3, 1911 (36 Stat., 1041), was entitled to 
mileage for travel performed in connection with his duties. 

Held^ that notwithstanding the close relations which the society 
sustains to the United States under existing law^, it is not made a 
part of the Army, so that travel performed by the officer detailed to 
take charge of the first-aid department in connection with his duties 
becomes travel for the Army; and that it could not be certified that 
such travel was necessary in the military service as required bv the 
act of March 3, 1883 (22 Stat., 456), in order to entitle an officer t« 
mileage. The question w^as, therefore, answered in the negative. 

(84-000, J. A. G., Jan. 13, 1914.) 



TELEPHONE SERVICE: Telephones in private residences; room used for 
office. 

The question arose as to whether a telephone might be installed in 
the private quarters of the attending surgeon at Philadelphia, Pa., in 
\iew of the provisions of section 7 of the act of August 23, 1912 (37 
Stat., 414), which prohibits the expenditure of any money appropri- 
ated l3y Congress " for telephone service installed in any private resi- 
dences or apartments or for toll or other charges for telephone service 
from private residences or apartments, except for long-distance tolls 
required strictly for the public business." 

Held, that' if the telephone in question is deemed necessary for the 
public business of the attending surgeon at Philadelphia, and if no 
other provision is made for such service, the law would not prohibit 
the payment for this service installed in a room of the officer's pri- 
vate quarters set apart for the transaction of his necessary public 
business as attending surgeon. 

(72-335, J. A. G., Jan. 12, 1914.) 



TRANSPORTATION': Travel allowance on discharge; transportation over 
different lines. 

The depot quartermaster at San Francisco, Cal.. desired instruc- 
tion as to the manner of issuing transportation requests covering 
transportation of soldiers on discharge where they wished to travel 



336 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

by some other line than that of shortest mileage to the point to which 
they are entitled to be transported, which point could be reached 
by other lines over longer mileage. 

Eeld^ that it is allowable to issue transportation reqiiests over 
any of the lines out of San Francisco to any point desired, pro- 
vided said point is not more distant than the one to which the soldier 
is entitled to transportation as measured by the shortest route, or the 
route which would be adopted for the interest of the Government if 
furnishing the transportation, if the cost thereof to the Government 
is not in excess of the cost over the route which would be adopted by 
the Government. Held further, that when the quartermaster has 
issued the transportation request and furnished subsistence the re- 
sponsibility of the Government ceases, and it has no concern as to 
what the Various railroad companies may do in honoring the re- 
quest to other points so long as the request bears the certificate of the 
traveler that transportation has been furnished. 

(94-332, J. A. G., Jan. 10, 1914.) 



TRANSPORTATION": Of general prisoners on discharge from confinement; 
sentence of court-martial. 

The act of March 2, 1913 (37 Stat., 715), appropriates: 

" For transportation * * * of persons on their discharge from 
the United States military prison or from any place in Avhich they 
have been held under a sentence of dishonorable discharge and con- 
finement for more than six months, or from the Government Hos- 
pital for the Insane after transfer thereto from such prison or place, 
to their homes (or elsewhere as they may elect), provided the cost 
in each case shall not be greater than to the place of last enlistment." 

Held, that this legislation should be construecl as authorizing the 
transportation of a released general prisoner as in said act provided 
only when he shall have been confined for more than six months 
under a sentence of dishonorable discharge and confinement 

(30-824.2, J. A. G., Jan. 21, 1914.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of tlie Judge Alvocate General.) 
CONTRACTS: Damages for failure to furnish hay according to contract. 

A contract was entered into for delivery of a certain quantity of 
number one Kansas upland prairie hay at Fort D. A. Russell, Wyo., 
during the first quarter of the fiscal year 1911. The contract was 
approved June 9, 1910, but before that date two orders were given 
for hay apparently intended to come under the terms of the con- 
tract. The contractor did not deliver the hay as called for, and the 
Government purchased other hay of a different kind at Cheyenne, 
Wyo. The- kind called for by the contract was not on sale at Chey- 
enne, but was sold at Denver. It does not appear that any attempt 
was made to purchase Kansas upland prairie hay of the quality 
called for by the contract, and it was not shown whether the kind 
purchased at a highei- price was of a like or of a superior grade to 
that called for in the contract. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 337 

Held, that while it appeared that the contractor was in default 
under his contract it was incumbent upon the Government to show 
the damages which it sustained, which damages were limited to the 
difference in cost between the article called for in the contract and 
the cost of the same or practically the same article on the market, 
and could not be measured b^^ the difference between the contract; 
price and the cost of another article materially different selling in 
the market for a much higher price than the contract article. Held 
further, that the Government could not recover the difference of the 
cost from the contractor. 

(Comp. Geo. E. Downey, Jan. 19, 1914.) 



DAMAGES: Repairs of barge tinder verbal agreement; owner making 
repairs; appropriation. 

The Government engaged a barge from a private company to sup- 
ply it with coal at a certain lock on the Ohio River upon the express 
agreement that it was to be returned in as good condition as when 
received, but no written agreement was entered into. The barge 
was badly damaged in the course of bringing it through shallow 
water. 

Held, that it was the right of the Government to have made the 
necessary repairs, but that as it waived this right and permitted the 
owner to do so, the latter should be regarded as the agent of the 
Government for the purpose of making such repairs and that the 
Government was liable for the reasonable cost of such repairs as 
were made necessary by any damage done to the barge while in said 
service. Held further, that the appropriation for the work in hand 
was available for the payment of said claim if otherwise correct. 

(Comp. Geo. E. Downey, Dec. 15, 1913.) 



EMPLOYEE: Paid from lump-sum appropriation; increase of efficiency. 

Upon submission of certain questions by the Attorney General — 
Held, that an increase in an employee's efficiency is not sufficient 
to warrant an increase in his salary paj^able from a lump-sum appro- 
priation unless accompanied with a substantial change in the char- 
acter of the service to be rendered. 

- Held further^ that where the compensation paid from a lump-sum 
appropriation to the incumbent of a given position during a pro- 
ceding fiscal year was less, because of inexperience or incapacity, 
than that paid in other like positions for the efficient performance 
of the same or similar services, a new employee appointed to the posi.- 
tion who discharges its duties efficiently may be paid a rate of com- 
pensation which does not exceed the rate paid in other like positions 
ror the same or similar services durins:: the preceding fiscal year. 
(Comp. Geo. E. Downey, Aug. 21, 1913, 20 Comp. Dec, 131.) 



FOB/AGE: Mount not complying with regulations. 

A major of Infantry claimed reimbursement for amomits ex- 
pended by him for forage and straw and for shoeing his privately 

93668°— 17 22 



owned mount, kept and used hy him in tlie military service. The 
chiim had been disallowed because it was held by the War Depart- 
ment that the animal was not a suitable mount. It appears that the 
horse was 2 inches below the height prescribed by Army Regulations. 

Hehh that in this case there was nothing to show that the officer 
was not mounted in a manner which enabled him to suitably perform 
his military duties, and reimbursement should be alloweel 

(Comp. Geo. E. Downey. Jan. 30. 1913.) 



GSATUITY: Q\\ death of soldier; desig-nation of beneficiary by will. 

A private soldier died in service from disease not the result of 
his own misconduct. The reccrcis of his company disclosed that 
he had designated a beneficiary for the six-months gratuity pay- 
able under fhe act of May 11.' 1908 (35 J<tat.. 108). "ijut failed to 
show the name of the beneficiary, and it did not appear that the 
soldier was survived by a widow. The la-^t will of tlie soldier pro- 
vided: "It is my desire that all my belongings, both deptisits and 
otherwise, go to my mother." but did not give her name and address. 

Ileld^ that if upon investigation the designation slip could not be 
found or direct evidence as to the person designated could not be 
produced, the will shotdd be taken as suHicient evidence that the 
person designated by him was his mother, and the six-months' gi'a- 
tuity might be paid to her. 

(Comp. Geo. E. Downey. Jan. 3. 1911:.) 



HEAT AND LIGHT: Allowance to Navy officers on temporary duty. 

Two Xavy officers were ordered away from their permanent station 
to temporary duty at Xewport, E. I.: one gave up his residence at 
liis permanent station, and the other temporarily closed liis house 
thereat. 

Held, that the quarters which the officer's duty makes it necessary 
for him to occupy are those which the law contemplates shall be 
heated and lighted at Government expense, and if these officers gave 
up their residences at their permanent post or closed the same so 
that they would not be occu]>ied during such period of temporary 
absence and so that n(^ heat or light wculd be furnished by the (tov- 
ernment for use therein, they would be entitled to heat and ligiit 
allowances for quarters actually occupied i)y them at their posts of 
tempoj-ary duty. 

(Asst. Comp. AV. \\. Warwick. Aug. 4, 1913, 20 Com-p. Dec. 67.) 



HEAT AND LIGHT: Allowance to Navy officers on leave; number of 
rooms. 

During the month of June, 1913, a naval construc't(;r was on duty 
at a shore station where he occupied quarters other than public, no 
]iublic quarters being ayailal)le for his usx^. He was on leave a 
portion of this time. . He certified that during the month he occu- 
{)ied quai-ters at an inn, and that there were no means by which the 
quantity of heat and light consumed within the limits of his apart- 
ments could be definitely ascertained. 



DIGEST or OPINIONS OF THE .JUDC4E ADVOCATE GENERAL, 339 

Held, that ^Yllel■e an officer occupies quarters other than public the 
fuel or illuminating' supplies for which can not be measured, he is 
entitled to not more than the allowances prescribed in the regula- 
tions for the number of rooms actuality occupied: that the officer's 
certificate as to the number of rooms actually occupied by hiju, if 
sufficiently specific, will ordinarily be accepted by the accounting 
officers as sufficient evidence of that fact, but it is not conclusive, and 
in any case the accounting officers may require other evidence; that 
such certificate should slicw the number of rooms actually and ex- 
clusively occupied as his quarters and that the number does not in- 
clude bath rooms, store rooms, or rooms used in common with other 
guests or tenants, such as public dining rooms, parlors, kitchens, 
halls, etc. Held further^ that if the officer's qmirters are actually 
occupied by his family or by persons dependent upon him for sup- 
port during his absence with leave, payment for the heat and light 
allowance for such period was authorized; otherwise the officer was 
entitled to no heat and light allowance for such period. 

(Asst. C'omp. W. W. Warwick, Xwg. 15, 1913, 20 Comp. Dec, 83.) 



LIVING EXPENSES: Travel day; nig'hts lodg'ing-. 

In measuring a travel day for the purpose of computing daily 
expenses after review of certain decisions, 

Held, that the daily charge for living expenses should commence 
with the charge for breakfast and end with the charge for lodging 
for the whole of the following night. The decision 19 Comp. Dec, 
67'2, is modified accordingly. 

(Comp. Geo. E. Downey, Jan. 7, 1914.) 



MILEAGE: Cost of transportation under orders; hire of automobile. 

An officer of the Army was ordered to travel on public business 
to a certain point and return. For a portion of the distance no 
railroad facilities were available and he was compelled to hire an 
automobile for this part of the journey. The mileage law of June 
12, 1906 (34 Stat., 246), provides that officers of the Army traveling 
under competent orders without troops shall be paid 7 cents per mile 
and no more; that he may apply to the Quartermaster's Department 
of the Government for a transportation request for the journey, and 
if the same is furnished him it shall be charged against his mileage 
account at the rate of 3 cents per mile for whatever distance trans- 
portation is furnished. 

Held, that said provisions were not repealed by the appropria- 
tion for transportation of the Army and its supplies (act of Mar. 
2, 1913, 37 Stat., 716) ; " For the purchase, hire, operation, main- 
tenance, and repair of such harness, wagons, carts, drays, and other 
vehicles as are required for the transportation of troops and sup- 
plies, and for official, military, and garrison purposes," and that the 
officer could not be reimbursed for the hire of the automobile. 

(Comp. Geo. E. Downey, Dec. 16, 1913.) 



340 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENERAL. 

MILEAGE: Waval service; Government furnishing transportation. 

A chief warrant machinist of the Xavy, whose rights to mileage 
are the same as those of an ensign, performed varions journeys be- 
tween Newport News, Va., and Norfolk, Va., imder mileage condi- 
tions, using a Government conveyance. No directions for the allow- 
ance of actual and necessary expenses were given. J 

Held, that the fact that the officer was permitted to use a Gov- 
ernment conveyance for the performance of this travel, the expense 
of which to the Government was inappreciable did not operate to 
defeat his rights to mileage, and mileage was therefore allowed for 
the travel at the rate of S cents a mile. 

(Comp. Geo. E. Downey. Jan. 20. 1914.) 



QUARTERS: Commutation of, at temporary station while family occupies 
quarters at permanent station. 

An officer was ordered from his permanent station at Fort Snell- 
ing, Minn., where he and his family occupied public quarters, to 
temporary recruiting duty at Duluth. Minn. He requested that 
his family be allowed to occupy his quarters during his absence on 
this duty or until such time as might be necessary for him to ascer- 
tain the lengih of his detail or make further arrangements. 

It is understood that this occupancy will not deprive other officers 
from obtaining these quarters when necessary. This request was 
approved by the commanding officer. He claimed commutation of 
quarters at his temporary station vdiile on duty there. 

Hdd, That the officer could not claim quarters or commutation 
thereof at more than one place at the same time: that his relinquish- 
ment of quarters at his former station must be absolute and imcon- 
ditional to entitle him to claim allowance at his said temporary sta- 
tion ; and that if the officer accepts or receives the benefits of Govern- 
ment quarters in kind, either directly for himself or indirectly for 
his family, he is not entitled to quarters or commutation thereof at 
anv station during the period such benefit is accepted, even though 
such benefit be given throiigh courtesy of the officer in charge. It 
was, therefore, held that the officer in question Avas not entitled to 
commutation of quarters while on temporary duty, overruling de- 
cision in 9 Comp. Dec, 879, in which his predecessor had overruled 
certain decisions of the Second Comptroller which rulings are now 
restored. 

(Comp. Geo. E. Downey, Jan. 21, 1914.) 



TRANSPORTATION: Furnishing' means of. to an officer on a mileage 
status. 

The mileage act of Jime 12. 1906 (M Stat., 240), provides for 
the pavment of mileage at the rate of 7 cents per mile and no more 
to officers traveling under competent orders without troops, and 
adds that — 

"Officers who so desire may. upon application to the Quarter- 
master's Department, be furnished mider their orders transporta- 
tion requests for the entire journey by land, exclusive of sleeping 
and parlor car accommodations, or by water; and the transportation 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 341 

SO furnished shall, if travel was performed under a mileage status, 
be a charge against the officer's mileage account to be deducted at 
the rate of 3 cents per mile by the paymaster paying the account." 

Provision is also made in the Army appropriation act of March 
2, 1913 (37 Stat., TIG), for the purchase, hire, operation, mainte- 
nance, and repair among other things of wagons, harness, carts, and 
other vehicles as required for the transportation of troops and sup- 
plies and for official and military and garrison purposes, 

Held^ That the Army appropriation act had no reference to the 
ijjileage law and did not repeal or enlarge any of its provisions; 
that the mileage law goes no further than to authorize the issue of 
transportation requests over established lines of common carriers 
by land and water and that it does not authorize the hiring of an 
automobile for travel of an officer to a j^oint inaccessible by com- 
mon carriers. 

(Comp. Geo. E. Downey, Jan. 12, 1911.) 



TRAVEL ALLOWANCES: On discharge; soldier not furnished sleeping- 
car accommodations. 

A soldier honorablv discharged and entitled to travel allowances 
under the act of August 24, 1912 (37 Stat., 576), was furnished by 
the quartermaster with proper transportation from St. Paul, Minn., 
to Houston, Tex. ; but although sleeping-car accommodations were 
demanded by the soldier, the same were not furnished by the quar- 
termaster, and the soldier paid for them himself, to the amount of 
$8..50, being the charge for a lower berth of a standard sleeper for 
said travel. 

General Order No. 54, of December 18, 1912, War Department, 
provides that : 

" When discharged soldiers elect to take transportation in kind 
and subsistence to place of enlistment, they will be entitled to the 
following : 

******* 

"(Z>) * * * If tourist car not available, an upper berth in a 
standard sleeper may be furnished if practicable; if not. a lower 
berth. No sleeping-car accommodations will be furnished in any 
instance when a night's journey is not involved and the distance 
does not exceed eight hours' travel." 

In this case it is certified that tourist-car accommodations were not 
available. 

Held^ that under present conditions of travel, when the journey 
involves night travel, it is recognized as a necessity by the Govern- 
ment to furnish to its employees sleeping-car accommodations in 
connection with transportation ; that the soldier did not lose this 
right by accepting the transportation under protest and paying for 
the sleeping-car accommodations himself; and that he should be reim- 
bursed in the amount which it would have cost to have provided an 
upper berth in a standard sleeper in accordance with said General 
Order No. 54. 

(Comp. Geo. E. Downey, Oct. 7, 1913.) 



342 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

DECISION OF THE COUKT. 

(Digest preparetl in the otlice of the Judiie A'lvo.-ate (Icneral.l 

ACCOUNTABILITY: For supplies received; certificate of accounting officers 
of the Treasury. 

Suit was brought by the Government to recover from tlie defend- 
ant the vahie of certain x\.rmv supplies received by him officially as 
captain of a voliinter company in the Spanish War. It was alleged 
that he had failed to account for the same, and that the value thereof 
was charged to him on the certificate of tlie Quartermaster General 
of the Army. The defense was a denial of the indebtedness. In the 
suit the Government rested upon the ceitificate of the accounting 
officer of the Treasury Department to the effect that the bahince sued 
for had been audited against the defendant. 

Held, That the certificate of the appropriate auditor of the Treas- 
ury Department, properly authenticated in accordance with section 
88(5. Revised Statutes, showing property unaccounted for by defend- 
ant, when introduced in evidence makes a prima facie case for the 
Government b(tth as to the property and its vahie. properly charged 
at its cost to the Government, and the burden rests on the defendant 
to account foi- it or to prove any claimed deterioration in its value. 

Held further^ That in an action by the United States against an 
Army officer charged with failing to account for supplies in his 
custody, a claim that he turned such supplies over to the proper 
officer to receive them is one for a ''credit," within the meaning 
of section 951. Revised Statutes, which piovides that in such suits 
"no claim for a credit shall be admitted upon trial except such as 
appear to ha\e been presented to the accounting officers of the 
Treasury for their examination, " unless the failure to so present it is 
excused^ etc.. and where the defendant was repeatedly urged by such 
officers during three years to present any matter which would re- 
move the charge appearing against him on the books, but failed to 
do so. evidence to establish such a defense is not competent. 

{Vivted States v. Du Perou\ U. S. Dist. Ct., Oct. 15, 1913, 208 
Fed., 895.) 



BULLETIN 8. 

Bulletin \ WAR DEPARTMENT, 

No. 8. j Wasiiingto.n, 3/ arch 14, J9U. 

The following digest of opinions of the Jiulgy Advocate General of 
the Army for the month of February. 1914, of a decision of the 
Comptroller of the Treasury, and of certain decisions of the Court 
of Claims, together with certain notes on the administration of mili- 
tary justice, is published for the information of the service in general. 
' |201)4269D— A.G.O.] 
Br ORDER en- the Secretary of War : 

LEONARD WOOD, 
Major- General^ Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Ad'iutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 
ABSENCE: From duty, due to miscouduct; stoppage of pay. 

The Army appropriation act of August 24, 1912 (.^,7 Stat., 572), 
provides that a soldier shall not receive pay from the appropriation 
contained in the act while he may be absent from duty on account of 
disease " resulting from his own intemperate use of drugs or alco- 
holic liquors, or other misconduct." A soldier attempted suicide by 
cutting his throat with a razor. Carefid investigation showed that 
the act was committed because of acute melancholia, recurrent, exist- 
ing prior to enlistment, the result of lack of success in civil life, and 
that there was no family, love, criminal, or vice troubles, and that 
the recruit was incapable of an appreciation of his act. 

Held, that the case falls mider the opinion of this office of Febru- 
ary 14, 1913 (Bui. No. 8, W. D., Mar. 18, 1913, p. 3), "that the words 
' other misconduct ' in the statute are limited by the rule of ejusdem 
geneins to conduct of the same general character as that indicated by 
the w^ords preceding them, to wit. ' intemi)erate use of drugs or alco- 
holic liquors,' or misconduct consisting in the intemperate or im- 
pro]ier indulgence of natural or acquired appetites f and that the 
pay of the soldier during his temporary disability should not be 
withheld. 

(72-210. J. A. G., Feb. 18, 1914.) 



APPROPRIATIONS— LUMP-SUM: Promotion of employees paid from; 
change of duties. 

A chief clerk whose salary was paid fiom a lump-sum ajipropi-ia- 

tion had been given, during the current fiscal year, increased re- 

343 



344 DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GENEEAL. 

sponsibilities, and had been called upon to perform certain duties in 
addition to and different from those performed by him dnrinsi: the 
precedino- fiscal year. The question submitted was whether, in view^ 
of his increased responsibilities and duties, an increase of his salary 
"w^ould be in violation of section 4 of the legislative, executive, and 
judicial appropriation act of March 4, 1913 (37 Stat., 790), which 
amends section 7 of the act of August 26. 191-2 (37 Stat., 626), to 
read inter alia as follows: 

'' That no part of any money contained herein or hereafter appropri- 
ated in lump sum shall be available for the payment of personal serv- 
ices at a rate of compensation in excess of that paid for the same or 
similar services during the preceding fiscal year; * * *." 

Held., that as the increase in the number and change .in the char- 
acter of the duties of said employee had occurred since June 30. 1913, 
and as certain of these increased duties which he performed and 
woidd continue to perform had been superimposed on his other 
duties and were of a different character, the question as to whether 
these additional duties were of such a different character or were 
sufficiently important to justify an increase in compensation was one 
of administration, and that if it be decided, as an administrative 
question, that the change in the character of the duties of said em- 
ployee was such as to make his position substantially a new one and 
different from any held during the preceding fiscal year, so that it 
could not be said that he Avould be paid more than he was paid during 
the preceding fiscal year for the same or similar services, the pro- 
posed increase in his compensation might lawfully be allowed. 

(80-460, J. A. G., Feb. 28, 1914.) 



APPROPRIATIONS: Transfer and promotion of clerk from statutory to 
lump-sum. 

The question submitted was whether in view of the prohibition 
contained in section 4 of the act of March 4, 1913 (37 Stat., 790), 
amending section 7 of the act of August 26, 1912 (37 Stat., 626), a 
clerk occupying a statutory position in the office of the Chief Signal 
Officer at $1,200 per annum whose duties were those of " stenographer 
and typewriter and assistant to the clerk in charge of personnel 
recorcis " could be transferred to the position of "principal clerk in 
the aeronautical division " upon a lump-sum pay roll, the latter posi- 
tion having been established by the Secretary of War June 27, 1908, 
and having been in existence since that date. The legislation referred 
to provides: 

"'That no part of any money contained herein or hereafter ap- 
propriated ift lump sum shall be available for the payment of per- 
sonal services at a rate of compensation in excess of that paid for the 
same or similar service dui-ing the preceding fiscal vear; nor sliall 
any person employed at a specific salary be hereafter transferred and 
hereafter paid from a lump-sum appropriation a rate of compensa- 
tion greater than such specific salary '" * *." 

Ileld^ that said transfer and promotion would be permissible under 
the law, provided that the duties of the new position were essentially 
diffei-ent fi-om those of the employee's former position. 

(5-075, J. A. G., Feb. 10, 1914;) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 345 

CHAPI/AIlSrS: Does service on the retired list constitute service for promo- 
tion? 

The question submitted was whether service on the retired list 
constitutes ser^■ice ^Yithin the meaning of the act of Congress concern- 
ing the rank of chaphiins approved April 21. 15)04 (33 Stat., 226), 
which act provides under certain conditions for the promotion of 
chaplains to the " grade, pay, and allowances of major." 

II eld ^ that service on the retired list did not constitute '" service "' 
within the meaning of that term as used in said act. 

(6-229.3, J. A. G., Feb. 3, 1914.) 



COMPTROLLER OF THE TREASURY: Submission to, by tlie department, 
of voucher of disbursing- oiBxer for advance decision. 

A district engineer officer suspended, on June 30, 1913. an assistant 
engineer, pending the outcome of charges which he preferred against 
him for inefficiency. Upon investigation, the Secretary of War 
failed to sustain the charges, and the officer was so advised by the 
Chief of Engineers, and also that the assistant engineer should be 
restored to duty and paid his authorized salary from the date of 
his suspension until his restoration to duty- The officer, before mak- 
ing payment, forwarded through the Chief of Engineers a voucher 
for the amount of salary du.e said assistant engineer for the period 
named, with the request that it be submitted to the comptroller for 
an advance decision. The Chief of Erigineers forwarded the same 
Avith favorable recommendation. 

The question was raised as to "whether there was occasion for the 
department to submit this case to the Comptroller of the Treasury." 

Held, that the circumstances of the case clearly brought it within 
the decision of the Comptroller of May 7, 1906 (12 Comp.. Dec. 653), 
wherein it was held that where a subordinate " suspends a civilian 
employee from duty without pay irhen he is ahle and tcniing to per- 
forno his duties, and prefers charges against him, and the Secretary 
of AVar subsequently declines to sustain the charges and decides that 
his suspension was not justified, said employee is entitled to pay dur- 
ing the period of his suspension." and also within the decisions of 
the Court of Claims in the case of Stilling v. United States (41 C. 
Cls.. 61). and the Supreme Court of the United States in the case of 
United States v. ^¥ickersh(l7n■ (201 U. S., 390). both of which were 
to the same effect as the above decision of the Comptroller: that, 
therefore, there would appeal" to be no good reason v,iiy the depart- 
ment should submit the question of the payment of this voucher to 
the Comptroller, but that the disbursing officer had the right under 
the laAv to submit the voucher to the Comptroller before paying the 
same, if he was doubtful as to the lesalitv of the proposed payment. 

(16-211, J. A. G., Feb. 27, 1914.) 



CONTRACTS: Agency; final payment on a contract to person holding power 
of attorney. 

The contractor for the extension of the water distribu.ting system 
at West Point, N. Y., being without funds, in consideration of an 



346 DIGEST OF OPIXIOXS OF THE JUEKiE ADVOCATE GENERAL. 

agreement by a tliirtl party to secure for him the necessary contiact 
])()nd, finance the project, pay him a weekly sahiry for siii)ervision, 
and allow him a certain per cent of all balances in excess of expenses 
at the close of the work, executed a power of attorney in favor of 
said part}". Prior to final payment for the work, which resulted in 
loss, the contractor disappeared. The work had been completed and 
accepted, the extension had been in actual operation, and the party 
holding the power of attorney re(]uested that he be })aid the balance 
due under the contract. 

lleld^ in view of the pro^isions of sections 37:^7 and H744, Revised 
Statutes, which, respectively, prohibit the assignment of contracts to 
which the United States is a party, and retpiire all contracts entered 
into on behalf of the United States by the War, Navy, and Interior 
Departments to be reduced to writing and signed at the end thereof 
J)y the contiaeting parties, it could not be shown that the person in 
whose name the contract was made was in fact the agent of another, 
so as to authorize payment to the latter (10 C'omp., Dec liOl), and 
that payment could not pioperly be made to the applicant as princi- 
pal of the person with whom the contract was made. 

(76-520, J. A. G.. Feb. 11, 19U.) 



COURTS-MAIITIAL: Effect upon proceedings when officer who preferred 
the charge sits as a member of the trial court. 

In each of three cases tried by a special court-martial the record 
showed that the officer who had signed the charge sat as a member of 
the court and participated in the findings and sentence. Informa- 
tion from a source outside of the record indicated that the officer who 
had signed the charge in each case had been directed by superior 
military authority to j)refer the charge, and that the action of said 
officer in connecti(m with the |)referring of the charge was that of 
a mere ministerial agent carrying out instructions from superior au- 
thority. The question raised was whether or not, under these condi- 
tions, the officer who had signed the charges was legally eligible to 
sit as a member of the court for the trial of these cases, and whether 
or not his sitting as a member of the court served to invalidate the 
proceedings, in \iew of the provision in the act of JNIarch 2, 1913 
(37 Stat.. 722). that— 

"The commanding officer of a * '' * camj) * * * may 
appoint special courts-martial for his command: * * * and no 
officer shall be eligible to sit as a member of such court when he is 
the accuser or a witness for the prosecution." 

Ileld^ that the officer who has signed the charge in a particular 
case is prbna fa/'ie the accuser in that case; that in signing the 
charge he has performed ;ui act that, in the absence of a showing to 
the contrary, nnist be construed as having been performed in the 
capacity of an accuser: that prima jacuc he is therefore ineligible 
to sit as a member of the trial court: that if, when the charge is laid 
before the court, a sliowing l>e uuide to the satisfaction of the court 
that the preferring of the charge by the officer signing the same was 
an act purely ministerial in cliaracter, [)erf<)rmed in pursuance of 
orders from superior authority and representing no initiative or con- 
viction on the part <tf the officer so signing, the court may find 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 347 

thi't the officer is not in fact the accuser within the meaning of the 
statute, and therefore not disqualified under the statute from sitting 
as a member of the court for the trial of the case: that in such a 
case the fact that evidence touching the eligibility of the officer was 
heard by the court, and the finding arrived at by the court, should be 
made of record: that after the proceedings have been concluded, and 
the record has been nuide up, evidence ((liunde can not be considered 
for the purpose of rebutting the presumption that the officer who 
signed the charge is in fact the accuser in the case; that since in each 
of the cases in reference the record showed that the officer preferring 
the charge sat as a member of the trial court, and contained nothing 
to indicate that said court, upon investigation, had arrived at a 
finding that he was not as a matter of fact the accuser in the case, 
it must be held that he was legally ineligible to sit as a member of 
the court for the trial of said cases, and that the proceedings in each 
of said cases must be held to be invalid. 
(30-435, J. A. G., Feb. 20, 191-1.) 



COURTS-MABTIAL: Effect upon proceeding's when officer who preferred 
the charge sits as a member of the court; subsequent proceeding's upon 
same charg'e. 

A soldier was brought before a general court-nuirtial at Jackson 
Barracks, La., for trial upon the charge of fraudulent enlistment. 
He entered a plea of guilty, was found guilty, and was sentenced 
accordingly. The record of the proceedings showed that the officer 
who preferred the charge sat as a mend)er of the court when the case 
came up for trial. The reviewing authority disapproved the pro- 
ceedings, findings, and sentence, for the reason that — 

'' The officer preferring the charges was permitted to sit as a mem- 
ber of the court, in violation of the act of March 2, 1913," which 
provides (37 Stat., 722) that— 

" * * * the commanding officer of a territorial * * * de- 
partment * * * may appoint general courts-martial whenever 
necessary; * * * and no officer shall be eligible to sit as a mem- 
ber of such court when he is the accuser, or a witness for the prose- 
cution." 

Subsequently, at Fort Morgan, Ala., the soldier was brought before 
a general court-martial for trial upon substantially the same charge, 
whereupon he pleaded former jeopardy and the one hundred and 
second Article of War in bar of trial. The court sustained the plea 
of former jeopardy, and. the record of tlie proceedings having been 
returned to the convening authority, the latter requested an opinion 
as to the validity of the plea interposed by the accused and sustained 
by the court. 

Fields that the question to be determined was Avhether or not the 
proceedings at Jackson Barracks were had before a lawful court 
and therefore constituted a law^ful trial, in view of the fact that 
the officer preferring the charge sat as a member of the court for 
the trial of the case: that the evident intent embodied in the legisla- 
tion of March 2, 1913. is to disqualify for service as a member of the 
trial court any officer who has placed himself in the attitude of accus- 
ing the person to be tried of the offense for which he is to be tried ; 



348 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GEXEKAL. 

that the officer vsho has signed the charge in a particiihu' case is 
prima facie the accuser in t]iat case and prima facie ineligible to sit 
as a member of the trial court ; that in the absence of a showing 
that the officer who signed the charge is not in fact the accuser in 
the case, and of a finding and ruling to that effect made of record 
in the case, the fact that the officer whose name is signed to the charge 
sat as a member of the court must be regarded as invalidating the 
proceedings; that if the record in the case shows that the officer who 
signed the charge sat as a member of the trial court and there is 
nothing in the record to disturb the presumption that he is in fact, 
the accuser, the record must be construed as showing that the accuser, 
within the meaning of the act of March 2, 1913. sat as a member of the 
court, and the proceedings must be held invalid; that inasmuch as 
the record of the proceedings at Jackson Barracks showed that an 
officer who sat as a memlier of the court had signed the charge 
before that court for trial and was therefore prima facie the accuser 
in the case, and as there was no showing and finding of record that 
he was not in fact the accuser, the court at Jackson Barracks was 
not law^fully constituted for the trial of that case, and its proceedings 
were therefore nu41 and void; that the action of the reviewing au- 
thority upon the proceedings had at Jackson Barracks was in legal 
effect a declaration of nullity, and, being warranted in law, is binding 
upon the court at Fort Morgan, to which the pending charge against 
the accused was referred for trial : that not having been legally tried 
heretofore upon the charge now brought against him the accused may 
be required to answer to said charge; and that the convening au- 
thority may reverse the riding of the trial court in respect of the plea 
of former jeopardy and remand the case to the trial court for further 
proceedings. 

(30-453.21, J. A. G., Feb. 28, 1914.) 



HEAT AND LIGHT: Issue of allowance of, to servant of officer absent on 
temporary duty. 

The question was submitted as to whether a servant left in charge 
of an officer's quarters during his absence on temporary duty could 
be considered as a part of the officer's family so that the officer's fuel 
and light allowance could be issued to said servant. 

HcIaT^ that the term " family " is one which may have a well-defined 
and restricted or a broad and comprehensive meaning according to 
the connection in which it is used, but that unless the context mani- 
fests a different intention the word " family " is usually construed in 
its primary sense as signifying " the collective body of persons living 
in one house, or under one head or manager, or one domestic govern- 
ment" (19 Cyc, 450-453) ; and that in the case under consideration, 
as the quarters w ere occupied only by a paid caretaker who had been 
a servant in the officer's family, the occupancy by such caretaker could 
not l^e considered as an occupancy by the officers family, the occu- 
pancy contemplated by the regulations being an actual and not a 
constructive occupancy. Field further^ that such paid caretaker 
could not be regarded as coming under the term " family " as used in 
paragraph 1039, Army Kegulations, 1913, which provides that: 

" Find will only be issued or sold to an officer upon his certificate 
that it is for his personal or family use; * * *." 
(72-315, J. A. G., Feb. 19, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 349 

HEAT AND LiaHT: Officer on temporary duty, to whom fuel and light 
were issued, not entitled to draw^ fuel and light at his permanent sta- 
tion for the same period, even though his total allowance be not ex- 
ceeded. 

An ofiicer on temporary duty at Galveston, Tex., occupied a liouse 
at his temporary station from July 1 to December 81, 1913, for which 
lie drew fuel from the depot quartermaster at (iralveston. During 
the same period a paid servant occupied the officer's quarters at Fort 
Eiley, Kans., his permanent station, as a caretaker, and was supplied 
with fuel and light therefor by the quartermaster at Fort Riley. The 
(juestion submitted was whether the officer should be required to pay 
for the fuel and light furnished at Fort Riley, provided his total 
allowance of fuel from July 1, 1913, to June 30, 191-t, was not ex- 
ceeded. 

IleJd^ that the issue of fuel at Fort Riley for any part of the 
period from July 1, 1913, to December 31, 1913, was unauthorized, 
under the decision of the Assistant Comptroller elated February 8, 
1912 (18 Comp. Dec, 592), in Avhich it was held: 

'* When the quarters actually occupied by an Army officer are 
heated at the expense of the United States he is not entitled to have 
a.ny additional fuel issued to himself or to his family at the expense 
of the United States, notwithstanding the fact that he may not have 
occupied the full number of rooms to which his rank entitled him or 
that the quantity of fuel used to heat the rooms which he occupied as 
quarters 'may have heen less then the (juantlty which the regulations 
prescribed as the 7na.eim.um quantity for the number of rooms which 
he otcupiedP 

(72-315, J. A. G., Feb. 24, 1914.) 



PATENT RIGHTS: Repairs to engine protected by. 

An engine in a Government power plant protected by certain pat- 
ent rights had been wrecked and the question was raised in connec- 
tion with repairing the same as to whether there was any legal reason 
Avhy the contract for repairs thereto should not be awarded to the 
lowest bidder, said lowest bidder being neither the owner of said 
patent rights nor possessing any interest therein. 

Held^ that it is well settled that the purchaser of a patented ma- 
chine has the right to use it until it is worn out and may repair it or 
replace worn-out parts, provided he does not infringe some other 
patent in so doing ; and that, therefore, there could be no question of 
the right of the Government to have the engine in question repaired 
by any contractor to whom it might elect to award the work. 

(76-125, J. A. G., Feb. 5, 1914.) 



RESTORATION TO DUTY: Of general prisoner serving sentence of con- 
finement at the United States Military Prison, Fort Leavenworth, Kans. 

A general prisoner who had theretofore been dishonorably dis- 
charged the service of the United States and was serving a sentence 
of confinement at the United States Military Prison, Fort Leaven- 
worth, Kans., pursuant to the sentence of a general court-martial, 
applied for restoration to duty to complete the enlistment from which 
he had been dishonorably discharged pursuant to such sentence. 



350 DIGEST OF OnXIOXS OF THE JUDGE ADVOCATE GENERAL. 

Ser-tion 1352 of the KeviseJ Statutes, relating to the Ignited States 
Military Prison and persons confined therein, reads as follows: 

'' The commandant shall take note and make record of the good 
conduct of the convicts, and shall shorten the daily time of hard labor 
for those who, by their obedience, honesty, industry, or general gootl 
conduct, earn such favors; and the Secretary of War is authorized 
and directed to remit, in part, the sentences of snch convicts, and to 
give them an honorable restoration to duty in case the same is 
merited." 

Held^ that nnder the foregoing statute the Secretary of War had 
the power to gi\e said general prisoner an honorable restoration to 
dnty, and that he should do so in case it was merited; and that such 
honorable restoration did not mean a new enlistment, but did mean a 
revival of the old enlistment and the reinstatement of the delinquent 
in it at the point where he quitted it in dishonor. 

(80-462, J. A. G., Feb. 25. 1914.) 



TRANSPORTATION; Excess baggag^e; can an officer who has been fur- 
nished with transportation of excess baggage be legally required to 
remit the cost of the same? 

An officer was ( rdered to proceed on duty without troops from 
Fort Douglas, Utah, to Washingt<;n, D. C. Upon his application 
transportation of three hundred pounds of excess baggage in connec- 
tion with said travel was furnished him by the depot quartermaster 
at St. Louis, Mo., from Kansas City, Mo., to destination. In view 
of the decisions of the Comptroller of the Treasury, construing the 
laws authorizing payment of mileage and the transportation of bag- 
gage of officers traveling on a mileage status, that they must bear the 
expense of the trausjiortation of their excess baggage from their 
mileage alloAvance in like n.ianner as they pay therefrom the cost of 
their transportation and of their parlor and sleeping car fares, and 
that any payment of the same from public funds would be unlawful, 
said depot quartermaster requested the officer to remit to him the co-t 
of the transportation of his excess baggage in order that he might 
make settlement with the carrier therefor. ' This he refused to do 
until so ordered by direction of the Secretary of War. He thereupon 
transmitted the amount through The Adjutant General of the Army, 
with the request that before the same should be forwarded to said 
depot quartermaster an opinion be obtained from the Judge Advo- 
cate General as to whether he could legally be ordered to remit this 
money in the manner indicated, as he was unable to find any law, 
decision, or regulation in accordance with which an cvfficer could be 
ordered to remit nu^ney under such circumstances. 

Held, that as the shipment was made by the quartermaster up<ii 
the officer's apjilicaticn, and as under the law as construed by the 
C^omptroller payment therefor can not lawfully be made from any 
Government appi'opriation but is a charge against the officers' mile- 
age allowance, the quartermaster must be hehl to have acted as the 
agent of the officer and not of the Government in furnishing the 
trans|)ortation. and therefore the order for the remittance of the cost 
of the shipment was pro]ierlv and lawfully issued. 

(9^232.1, J. A. G., Feb. 20. 1914.) 



DIGEST OF OPIXrOXS OF THE JUDGE ADVOCATE GEXEKAL, 351 

DECISION OF THE COMPTSOLLER OF THE TREASURY. 

(Digest prepared in the Office of the Judge Advocate General.) 

TRANSPORTATION: Of excess baggage with change of station allowance; 
cost of, not subject to land-grant deductions. 

A railroad company appealed from a disallowance b}' the Auditor 
for the War Department of its claim for transportation of excess bag- 
gage of certain officers shipped by quartermasters with their change 
of station allowances, said claim for additional compensation being on 
account of land-grant deductions made by disbursing officers in paying 
for the transportation of such excess baggage. The railroad company 
contended that it was entitled to payment for the transportation of 
such excess baggage at full tariff rates without land-grant deductions. 
Tlie Comptroller, while affirming the disallowance by the Auditor on 
the ground that the appropriations for '' Trans[)ortation of the Army 
and its supplies"are not availa'jle to make any payments fortransporta- 
tion over the land-grant roads specified in said acts in excess of 50 
per cent of tariff rates and holding that any claims of this character 
should be made directly upon the officers who were furnished with the 
transportation, overruled his prior decisions of Decern! ;er '20. 1910 (17 
Comp. Dec, 428), and of June 26, 1911 (17 Comp. Dec, 997), which 
authorized land-grant deductions from the transportation of such ex- 
cess baggage and reimbursement by the officers to whom the transpor- 
tation was furnished on the basis of the net rates thus determined. 

In overruling said former decisious upon the application of the 
land-grant laws to the transportation of excess baggage, heM, that 
any excess baggage over the change of station allowance authorized by 
Army Regulations can in no sense be held to )je Government property 
or property wdiicli the Government is pledged to transport, and a rail- 
road company can not be required to transport it as jjublic property; 
that the provisions in the appropriation acts that payments to land- 
grant railroads shall not be in excess of 50 per cent of the^ tariff rates 
applies only to moneys authorized to be expended therefrom and pay- 
able by the Government for service rendered to the Government and 
not to the transportation of an officer's baggage, for which the law 
requires that reiml)ursemeiit shall be made by him; and that, there- 
fore, the excess over the regulation change of station allowance of 
baggage of an officer of the Army authorized to be shipped with such 
allowance is not subject to land-grant deductions, but should be paid 
for and reimbursement collected at the tariff' rates applicable on said 
excess for the shipment as made. 

(Comp. Geo. E. Downey. Feb. 21. 1911.) 



DECISIONS OF THE COURT OF CLAIMS. 

(Digests prepared in the ofhee of the .Tudiie Advocate General.) 

ARMY REGULATIONS: Chang-es in. Board, lodging, etc.. of civilian em- 
ployees on temporary dvity. 

A clerk in the Subsistence Department, Fort Eiley, Kans., was 
ordered on temporarv dutv nt vSan Antonio, Tex., v\here he served 
from March 9 to July 20, 1911. On March 28, 1911. the Secretary of 
ATar approved the recommendation of the Quartermaster General 



352 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

tliat thereafter the allowance iiinler Arm}^ Regulations of not to 
exceed ^-Lr^O per day for board, lodging*, etc., to all civilian employees 
of the War I)epartmcnt assigned to temporary duty and paid from 
the appropriations for the Quartermaster's Department, be limited 
to the first 30 days on such duty. Said clerk was accordingly paid 
the cost of his meals, lodgings, etc., for the first 30 days only. He 
filed a claim for reimbursement under Army Regulations for the 
balance of the time he was on temporary duty, contending that the 
Secretar}^ of War acted beyond the scope of his legal authority in 
attempting to change the Army Regulations prescribing said allow- 
ances of civilian employees, on the ground that the issuing or modify- 
ing such regulations must be distinctively tlie personal act or order of 
the President, which could not be delegated to a subordinate. 

Held, that it is well settled by both the decisions of the Court of 
Claims and the Supreme Court that the President may legally act 
tlu'ough the head of a department, that tlie fixing of 30 days as the 
limit of temporary duty in this case was wholly within the discretion 
of the Secretary of War, and that the plaintiff had no legal claim 
against the United States for reimbursement for the cost of his board 
and lodgings for any time in excess thereof. 

{Maxivell v. United States, C. Cls. Xo. 31240, Feb. 9, 191-i.) 



PAYMASTEES' CLERKS OF THE NAVY: Officers within the meaning of 
the mileage laws. 

A paymaster's clerk of the Xavy was ordered to proceed from 
Washington, D. C, to his home and to consider his appointment 
revoked upon his arrival thereat. He w^as reimbursed for his travel- 
ing expenses on said journey. He filed a claim for the difference 
between his traveling expenses and mileage at 8 cents per mile, con- 
tending that he was an officer of the Navy, and as such was entitled 
to mileage instead of traveling expenses w hen traveling under orders. 

Held, that as the Xaval Regulations require that a paymaster's 
clerk shall be appointed by the Secretary of the Navy, he is an officer 
of the Navy within the meaning of the decision of the Supreme Court 
in the case of the United States v. Mouat (124 U. S., 303), wherein 
it was held that an appointment by the head of a department consti- 
tutes the person appointed an officer of the United States, and that 
being an officer of the Navy he is entitled to the benefit of the mileage 
laws. 

{Katzer v. United States, C. Cls. No. 31888, Feb. 0, 1014.) 



NOTES ON THE ADMINISTRATION OF MILITAEY JUSTICE. 

1. On February 14. 1014, the Secretary of War had the following 
instructions communicated to each officer exercising general court- 
martial jurisdiction : 

(rt) '" In each case tried by general court-uiartial in which a peni- 
tentiary is designated as the place of confinement of the person tried, 
the record of trial, when foiwarded to the Judge Advocate General 
of the Army, Avill be accompanied by a signed statement indicating 
the law or laws authoiizing the confinement in a penitentiai-y of the 
person sentenced. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEBAL. 353 

(b) "In each case tried by general court-martial in which the 
confinement of the offender in a penitentiary is authorized by law, 
but in which a place other than a penitentiary is designated as the 
place of confinement, the record of trial, when forwarded to the 
Judge Advocate General of the Army, will be accompanied by a 
signed statement indicating the law authorizing the confinement in 
a penitentiary of the person sentenced and the reasons, briefly ex- 
pressed, for designating a place other than a penitentiary, instead 
of a penitentiary, as the place of confinement in the particular case. 

(c) "If the law relied upon as authorizing confinement in a peni- 
tentiary be a Federal statute an accurate citation will be regarded 
as sufficient to indicate the law, but if any other law be relied upon 
as authorizing confinement in a penitentiary such law will be quoted 
in full in the required statement." 

2. In connection with the designation of places of confinement a 
department commander was advised that the demand for prison 
labor at posts was not deemed a sufficient reason by the War Depart- 
ment to warrant a departure from the rule laid down in paragraph 
15, General Orders No. .56, War Department, 1913, and reiterated 
in special instructions of December 4., 1913, in a case in which the 
offender was legally and properly punishable by confinement in a 
penitentiary. It was further stated that the success of the effort 
now being made to reclaim offenders convicted of purely military 
offenses, and the feasibility of extending the scope of that effort to 
include offenders convicted of civil offenses not punishable by con- 
finement in a penitentiary, must depend to a considerable extent 
upon the cooperation of officers exercising general court-martial 
jurisdiction, and the care employed by them in furthering the plans 
of the War Department to exclude from the military prisons all 
offenders hereafter convicted by general court-martial of offenses 
legally and properly punishable by confinement in a penitentiary. 

3. In two cases, based on charges alleging the commission of fel- 
onies, the introduction by the prosecution of hearsay testimony was 
permitted, perhaps in the belief that, because the testimony consisted 
of statements made to an officer who was at the time conducting an 
official investigation, it formed ail exception to the hearsay rule, 
which, however, is not the case. While there was other evidence 
which, though meager, might have been considered sufficient if the 
court had arrived at its findings from a consideration of this alone, 
the fact that hearsay testimony might have been the controlling 
factor for the court's conclusions, or that the direct evidence might 
not have been considered sufficient proof without the hearsay, in- 
duced this office to recommend the remission of the unexecuted por- 
tions of the sentences in these cases. The fact that counsel for the 
accused failed to object to the admission of the testimony was not 
considered a sufficient reason to refrain from this recommendation. 
The admission of incompetent testimony always embarrasses the ad- 
ministration of justice and subjects it to criticism. It was further 
observed in these cases that the reviewing authority did not remark 
upon the improper admission of hearsay testimony. 

4. It has been frequently observed that judge advocates of courts 
fail to comply with the provision of the Manual of Courts-Martial, 

9.3668°— 17 23 



354 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

page 27, note 2, requiring a certificate as to disposition of the carbon 
copy of the record; and on the printed form, when used, it often 
occurs that the answer to the question " Has copy been furnished 
accused or sent to Judge Advocate General?" is yes, which answer 
[does not indicate which of the two dispositions was made of the car- 
[bon copy. When this office is called upon to furnish a copy, as pro- 
vided in the One hundred and fourteenth Article of War, to the 
party tried or his proper representative, the record under such cir- 
cumstances does not show affirmatively whether the accused has been 
already furnished a copy, and it therefore devolves upon the depart- 
ment to furnish another, sometimes at considerable expense and cost 
of labor. Department headquarters should note these failures to 
make a proper entry and have them corrected before forwarding the 
proceedings to the office of the Judge Advocate General. 

5. A department commander has forwarded the following obser- 
vation of one of his officers as worthy of consideration, and it is 
deemed important that the practice to which he adverts be corrected : 

{a) "Attention is called to the fact that numerous charges against 
enlisted men for desertion, or cases involving desertion, referred 
to the judge advocate for trial by general court-martial, are accom- 
panied by nothing more enlightening than a statement in' effect: 

' can testify that the accused did desert the s;ervice 

on date.' Or, 'I will testify that the records show that the 

accused deserted the service at on date.' 

(5) "Such very condensed, or incomplete, synopses of testimony 
expected are of very little use to the judge advocate in preparation 
of his casCj and it is especially difficult where the charges originate 
and the witnessCvS are at places other than place of trial, and also 
in cases to be tried by deposition, which casas require considerable 
correspondence before the judge advocate can prepare intelligent 
interrogatories and not burden the record with hypothetical and 
' stock ' questions." 



BULLETIN 14. 

BulletinI war department, 

No. 14. J Washington, April H, 19H. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of March, 1914, and of certain decisons 
of the Comptroller of the Treasury, is published for the information 
of the service in general. 
[2094269 E— A. G. O.] 
By order of the Secretary of War : 

LEONARD WOOD, 
Major General^ Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CIVILIAN EMPLOYEES: Medical treatment in hospital after discharge 
from, service; reimbursement for subsistence. 

A former civilian teamster, while in the service of the Quarter- 
master Department at Fort St. Michael, Alaska, was severely injured 
and taken to the post hospital for treatment. Before he left the hos- 
pital he had been discharged from the service, and was destitute and 
unable to pay his hospital expenses when he left the hospital. 

Held^ that from the regulations and the conditions affecting the 
man's service as appeared from the papers in the case, he was entitled 
to medical treatment at Government expense for his injury, and that 
this right continued for a reasonable time for such treatment, not- 
withstanding his relations with the Government as an employee had 
ceased, but that this right did not include treatment for chronic ail- 
ments or for an injury after it had become evident that the same was 
incurable or that the patient's condition could not be improved by 
further treatment. Held further., that it was proper to issue rations 
at the expense of the appropriation for the subsistence of the Army 
to reimburse the hospital fund for the subsistence of the patient. 

(16-414, J. A. G., Mar. 28, 1914.) 



CONTRACTS: For supplies; receiving' bid after time for opening; excuses 
for delay. 

Bids were received for 6,000 trunk lockers at the Philadelphia, Pa., 
depot February 25, 1914. The circulars to bidders specified that the 
bids would be opened at 11 a. m. on that day, and that proposals re- 

355 



356 DIGEST OF OPINIONS OF THE JUIKSE ADVOCATE GENERAL. 

ceived thereafter would not be considered. Just prior to the time for 
opening the bids a telephone message was received requesting that the 
opening be delayed until the sender could arrive with his proposal, 
stating that his car had broken down. The request was complied 
with and bids were not opened until 11.20 a. m. The delayed bid was 
found to be the lowest. 

Held^ that while it would be legal to waive the irregularity and 
admit the bid, yet such action was not recommended, in view of the 
terms of the circular to bidders and the provisions of paragraph 539, 
Army Regulations, 1913, which, after various precedents had been 
established for waiving delays in the reception of bids where the 
bidder was not considered at fault, was amended so as to recognize 
but one giound for such delay — that is, where it is clearly shown 
that the nonarrival on time was due solely to delay in the mails, for 
which the bidder was not responsible. 

(76-251, J. A. G., Mar. 7, 1914.) 



CONTRACTS: Supplemental; filing copies in Returns Office; paragraph 563, 
Army Regulations, 1913. 

Section 3744 of the Revised Statutes makes it the duty of the 
Secretary of War, inter alia^ to require contracts made under his 
authority "to be reduced to writing, and signed by the contracting 
parties with their names at the end thereof," and also requires that 
copies of such contracts be filed in the Returns Office of the Interior 
Department. 

Held^ that where a supplemental contract is made with the same 
formalities as are required for the execution of the original contract, 
such supplemental contract is in effect a new one modifying the 
prior contract, and a copy thereof should be filed in the Returns 
Office of the Interior Department as required by said section 3744 
and also by paragraph 563, Army Regulations, 1913. 

(76-340, J. A. G., Mar. 31, 1914.) 



DESERTERS: Expense of returning to their proper station; commutation 
of subsistence of guard. 

Two deserters surrendered themselves to the military authorities 
at Tacoma, Wash., and were returned in charge of a sergeant to their 
proper station at the Presidio, San Francisco, Cal. The sergeant 
Avas paid the commutation value of rations for himself and the men. 

Held^ That the expense of transporting a deserter to his proper 
station, or to his place of trial and which should be charged against 
him, includes not only the cost of transportation proper but also 
the subsistence both of himself and of his guard (Dig. Op. J. A. G., 
1912, p. 407 a), but that the charge on account of subsistence of the 
guard should be limited to the amount by which the subsistence or 
commutation of subsistence furnished him exceeds the cost of his 
subsistence at his proper station. 

(26-423.1, J. A. G., Mar. 26, 1914.) 



DIGEST OF OPIISriOISrS OF THE JUDGE ADVOCATE GENERAL. 357 

EIGHT-HOUR LAW: In the District of Columbia; female employees of 
tlie telegraph, office, War Departm.ent. 

The act of February 24, 1914 (Public, No. 60) provides— 

" That no female shall be employed in any manufacturing, me- 
chanical or mercantile establishment, laundry, hotel, or restaurant, 
or telegraph or telephone establishment or office or by an express or 
transportation company in the District of Columbia more than eight 
hours in any one day or more than six days or more than forty-eight 
hours in any one week." 

Ilelcl^ that the sovereign authority of a country is not bound by 
the words of a statute unless named therein (36 Cyc, 1172) ; that 
the United States was, therefore, not included within the meaning 
of the law and the telegraph office located in the War Department 
was not a telegraph establishment intended to be covered by the 
act ; and that female employees on duty therein did not come within 
the statute. 

(32-420, J. A. G., Mar. 14, 1914.) 



MILITIA: Organized, of the District of Columbia; naval battalion; retire- 
ment in the next higher grade. 

Section 20 of the act of February 18, 1909 (35 Stat., 631) for the 
organization of the Militia of the District of Columbia, provides for 
the retirement of officers of the National Guard of said district upon 
their own application, and further that — 

"An officer so retired who at the time of making such application 
has remained in the same grade for the continuous period of 10 
years * * * may be retired with increased rank of one grade and 
shall, before being so retired, receive from the President of the 
United States the commission of the new grade * * *," 

An officer of the naval battalion was commissioned ensign March 
13, 1903, promoted to lieutenant, junior grade, February 25, 1904, 
promoted to lieutenant February 12, 1906, and transferred to the 
ordnance department as first lieutenant with rank from December 
23, 1909. He claimed to have served in one grade since February 
25, 1904. 

Held^ that this officer counting back 10 years from the date of 
his application for retirement had served 10 years in the grades of 
lieutenant, junior grade, and lieutenant; that these grades were 
distinct in the regular naval service, and had distinct assimilated 
grades in the Military Establishment; and that the applicant was 
not eligible for retirement in the next higher grade of captain, not 
having served continuously for 10 years in the grade of lieutenant 
prior to his application. 

(58-820, J. A. G., Mar. 14, 1914.) 



NAVIGABLE WATERS: Harbor and high- water lines; lands below high- 
water line. 

In connection with the construction of Dam No. 1 on the Missis- 
sippi River at Minneapolis, Minn., opinion was asked as to the 
liability of the United States to pay for the fiowage of certain lands 
lying streamward from established harbor lines, or from the natural 



358 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

high-water line. It appeared that by the construction of this dam 
the water level would be raised so as to overflow some hard and 
fast land owned by private parties lying above the high-water line, 
and to submerge to a greater extent other lands below said line 
already wholly or partially submerged. The dam was a navigation 
improvement undertaken by the Federal Government and authorized 
bv the act of March 3, 1899 (30 Stat., 1147), as modified bv the act 
oie June 25, 1910 (36 Stat., 729). 

Ileld^ that a harbor line established pursuant to law is simply 
a line of convenience for the regidation of the exercise of private 
rights, is in the nature of a general permit for the erection of 
structures in aid of commerce, and is not a line vesting any rights in 
individuals; that if during the progress of a public navigation im- 
provement, and in consequence thereof, land lying below the high- 
water line becomes more deeply submerged than before, the ITnited 
States does not thereby become liable for a violation of the rights 
of private property ; and that this is so regardless of an established 
ha rbor line ; but that the rule does not apply to lands above the high- 
water line. 

(62-851, J. A. G., Mar. 11, 1914.) 



NAVIGABLE WATERS: Title to submerged lands under; easement in 
favor of works of national defense. 

1. Certain cables pertaining to the fire control of the defenses 
protecting the eastern entrance to New York Harbor were laid for 
a distance over certain lands beneath the navigable waters of the 
river at that point, which lands had been leased by the State of 
New York to private parties for oyster culture purposes. It seemed 
to be conceded that, upon the one hand, it would be dangerous to 
the operators using dredges in the vicinity of these cables, and 
injurious to or destructive of the harbor-defense system upon the 
other. Consequently, it was alleged, the lessees, to their loss, had 
abandoned operations in the immediate vicinity of the cables. The 
question was submitted by the proper military authorities whether 
the cables and their accessories must be transferred from their pres- 
ent location in order that oyster dredging in that particular locality 
might not be interfered with, it being accepted without question that 
dredging should not be carried on within the immediate vicinity of 
the cables. Upon the fundamental question whether the constitutional 
rights and duty of the Federal . Government to provide for the 
common defense gave to that Government such paramount rights 
for that purpose over the submerged areas in question as to subject 
such areas, regardless of any private property rights in them, to 
such use. 

Held, in the affirmative, that the title to the submerged lands 
beneath the navigable waters in question is qualified by its subor- 
dination to such use of them by the Federal Government as may 
be demanded by the Federal Government in the exercise of its duty 
to provide for the common defense, and that in that case any loss 
suffei-ed by the State's lessees by reason of such cables of such coast- 
defense system was not such as required compensation by the United 
States. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 359 

2. Inasmuch as Congress had actually subjected the lands and 
water in question to said use for the purpose of national defense by 
instituting said harbor-defense system and maintaining it out of 
public moneys appropriated for the purpose, and had provided for 
the protection of such systems by a penal statute providing that — 

" Whoever shall willfully trespass upon, injure, or destroy any of 
the works or property or material of any submarine mine or torpedo, 
or fortification or harbor- defense system owned or constructed or in 
process of construction by the United States, or shall willfully inter- 
fere with the operation or use of any such submarine mine, torpedo, 
fortification, or harbor-defense system, * * *." (Sec. 44, Penal 
Code.), should be punished with fine and imprisonment. Advised., 
that where oyster-dredging operations are carried on in the immedi- 
ate vicinity of harbor-defense cables or any other aids to national 
defense protected by the above quoted statute and are so conducted 
as to trespass upon, injure, or destroy any of such works of defense, 
it would be the duty of the department to see that proceedings 
were instituted under that statute to punish the parties for the offense 
so committed. 

(62-113, J. A. G., Mar. 19, 1914.) 



NEWSPAPERS AND PERIODICALS: For use of the troops on duty on the 
Mexican border. 

The question was presented as to whether newspapers and periodi- 
cals could lawfully be provided by the Quartermaster Corps for 
troops on duty on the Mexican border. The Army appropriation 
act of March 2, 1913 (37 Stat., 712), appropriates— 
" For the necessary furniture, textbooks, paper, and equipment for 
the post schools and libraries." 

Held^ that said provision in the Army appropriation act was limited 
by its terms to post schools and libraries, and that there being no 
other appropriation available for the purpose, no legal authority 
existed under which newspapers and periodicals could be purchased 
for the use of the troops in the situation indicated. 

(5-243, J. A. G., Mar. 13, 1914.) 



PAY CLERKS: Service with troops. 

A paymaster's clerk of the Quartermaster's Department before its 
absorption into the Quartermaster Corps, during the period from 
April 19 to November 10, 1912, was on duty at Fort Leavenworth, 
Kans., as clerk to a paymaster who was assigned to duty at that 
post and whose only duties were connected with the payment of the 
troops thereat. The paymaster's clerk presented his claim to the ac- 
counting officers of the Treasury Department for reimbursement for 
the amount expended by him for the hire of quarters or for commu- 
tation of quarters during such period. 

Held., that the paymaster was in the status of an officer serving 
with troops, and that his clerk should also be regarded as so serving 
for the purpose of determining his right to quarters or commutation 
thereof. 

(72-333, J. A. G., Mar. 12, 1914.) 



360 DIGEST OF OPINIONS OF THE JUDOE ADVOCATE GENERAL. 

RESERVATIONS: Military; license to erect permanent structures thereon. 

A certain banking company in Honolulu, H. T., applied for per- 
mission to open a branch banking house upon the Schofield Barracks 
Military Reservation, and for that purpose to erect thereon a suitable 
building. It proposed to do a general banking business, including 
the sale of exchange, and also to construct an adequate vault with 
safety deposit boxes and storage room for valuable packages. 

Held^ that from the plans submitted and from the stated purposes 
©f the company it was evident that the structure in contemplation 
would be permanent in character: that it would be inconsistent to 
grant a revocable license for its construction ; and that the executive 
had no authority to grant licenses for the construction of buildings of 
that character upon military reservations. 

(80-816.1, J. A. G., Mar. 12, 1914.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the Office of the Judge Advocate General.) 

CIVILIAN EMPLOYEES: Medical treatment; contract relations with the 
Grovernment. 

A member of the caretaking crew of certain Army transports out 
of commission at Newport News, Va., was injured during his em- 
ployment, and it was found necessary to place him in a private 
hospital and to employ a private physician for his treatment. The 
caretaking crew was governed by the rules laid down for the Army 
Transport Service and such additional rides as were set forth rela- 
tive to their duties as caretakers of the transports in question. 

Jield^ that as there was nothing in the man's contract of employ- 
ment or in the regulations for the service in which he was emplx)yed 
providing for hospital or surgical care at the expense of the Govern- 
ment, payment of the account of the hospital for medical services 
was not authorized. 20 Comp. Dec, 64. 

(Comp. Geo. E. Downey, Mar. 21, 1914.) 



CIVILIAN EMPLOYEES: Of the Quartermaster Corps; traveling and 
living' expenses; temporary duty. 

A wheelwright in the employ oi the Quartermaster Corps at large, 
regularly stationed at Fort Sheridan, 111., was directed by post 
special order dated October 4, 1913, confirming verbal order dated 
February 25, 1913, to proceed to Texas City, Tex., for temporary 
duty. f*aragraph 733, Army Regulations, 1913, provides for the re- 
imbursement of civilian employees of the War Department for actual 
expenses incurred while traveling under orders, as follows: 

" 5. Cost of meals, and lodgings including baths, tips, and laun- 
dry work, not to exceed $4.50 a day while on duty at places desig- 
nated in the orders for the performance of temporary duty, but reim- 
bursement of such expenses will be limited to $1 a day after the first 
30 days at any one place, * * * ." 

/7e?c?, that the claimant's regular station being at Fort Sheridan, 
he was, while performing duty at Texas City under his orders. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 361 

absent from his regular station on temporary duty, and was entitled 
to reimbursement for traveling and living expenses as provided for 
in Army Regulations (20 Comp. Dec, 477), although it would seem 
that a service of about a year was rather too long still to be regarded 
as temporary. This question, however, was not decided. 
(Comp. Gfeo. E. Downey, Mar. 24, 1914.) 



CONTRACTS: For supplies; advertising and renewals after the fiscal year. 

On submission of the question, by the Auditor for the Treasury 
Department, relative to contracts for the purchase of supplies in the 
Supervising Architect's Office, which contracts contained a provision 
for two annual renewals at the prices and upon the conditions 
stipulated therein, at the option of the department — 

Held,, that as the authority for the contracts was to be found in 
the annual appropriation acts they could not extend beyond the fiscal 
year for which the appropriation was made, and that the renewal of 
such a contract for a succeeding fiscal year, in accordance with the 
reservation contained in the original contract, was a new contract 
and was not made in compliance with the provisions of section 3709, 
Revised Statutes, requiring advertising for proposals in letting con- 
tracts for the purchase of supplies, the advertisement upon which 
the original contract was based extending only to the fiscal year to 
which is applied. 

(Comp. Geo. E. Downey, Mar. 9. 1914.) 



DESERTERS: Payment of expenses of apprehension; mistaken in- 
formation. 

The police authorities of Fresno, Cah, arrested a man suspected 
of desertion from the United States Army. The chief of police 
wrote to the commanding officer at the Presidio, San Francisco, in- 
forming him of the arrest and asking that the case be looked up and 
that they be informed of the situation, stating that they would hold 
the man for a few days pending such investigation. To this letter 
response was made by inclosing a deserter's circular describing the 
man in custody. The police authorities thereupon delivered the man 
to the military authorities at the Presidio, incurring an expense of 
$23. and were then informed that the man was not wanted. The fact 
was that he had previously deserted, had been punished for desertion, 
among other things, by being dishonorably discharged from the 
Army, and was at the time only a ci^^lian. 

Held, that the man being only a civilian at the time of his arrest 
and delivery and not liable to apprehension as a deserter from the 
Army, payment of the claim for expenses incurred was not author- 
ized, either from the appropriation for " Contingencies of the Army " 
or for " Incidental Expenses." 

(Comp. Geo. E. Downey, Mar. 20, 1914.) 



TRANSPORTATION: Rates on household goods; carriers risk. 

The Baltimore & Ohio Railroad Co. claimed compensation for the 
transportation of household goods, professional books, etc., of an 
Army officer changing station. The transportation was furnished 



362 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

on u Government bill of lading which contained the provision that 
" the shipment is at ' owner's risk' or released rates where tariff pro- 
vides lower rates on that account, and at ' company's risk ' where 
the tariff' makes no such provision." In this shipment the tariff 
would have been higher if the goods had been shipped with unlimited 
liability than if shipped with limited liability in case of loss. The 
bill of lading bore the statement " carrier's risk." 

• Held, following the meaning which usage has placed upon the 
term " carrier's risk " stamped upon the bill of lading, the trans- 
portation should be paid for at the higher rate fixed for unlimited 
liability, but that to avoid doubt the term should be abandoned as 
not expressing any clear idea, and instead thereof the term " full 
valuation," " unlimited valuation," or some other similar expression 
definitely describing the condition of the shipment, should be used. 
(Comp. Geo. E. Downey, Feb. 28, 1914.) 



TRAVEL ALLOWANCES: To enlisted men on discharge; deduction for in- 
debtedness due to the United States and to its instrumentaliies. 

A private soldier claimed that he was short paid for his travel 
allowance on* discharge from the service December 19, 1913, and the 
question was submitted as to whether or not the act of August 24, 
1912 (37 Stat., 576), regarding the travel allowances of soldiers on 
discharge, affected the practice of paying a soldier said travel allow- 
ances in full regardless of any indebtedness due to the Government 
or to its instrumentalities. For many years it was optional with the 
Government to furnish a soldier on discharge with transportation 
from place of discharge to place of enlistment, or to commute it (Sec. 
1290, Rev. Stat). The act of May 26, 1900 (31 Stat., 210), changed 
this to a straight commutation of 4 cents per mile. The act of 
August 24, 1912, s\ipra, made it optional with the soldier to receive 
transportation in kind and subsistence from place of discharge to 
place of enlistment, or to any point of no greater distance, or to 
receive 2 cents per mile instead thereof. 

Held, that when an enlisted man is discharged from the service and 
elects to receive 2 cents a mile in lieu of transportation in kind and 
subsistence for travel from place of his discharge to the place of his 
enlistment, such travel allowance is not subject to deduction to make 
good indebtedness of the soldier to the United States or to such 
instrumentalities of the Government as shall have been legally estab- 
lished, such as post exchanges, or company funds, and that the act of 
August 24, 1912, effected no change in the practice theretofore pre- 
vailing with regard to such indebtedness. 

(Comp. Geo. E. Downey, Mar. 31, 1914.) 



BULLETIN 20. 

BttlletinI war department, 

No. 20. J Washington, May IJ^^ 191 li. 

The folloAving digest of opinions of the Judge Advocate General 
for the month of April, 1914, and of certain decisions of the Comp- 
troller of the Treasury and of the courts, is published for the infor- 
mation of the service in general. 
[2094269 F— A. G. O.] 
By order or the Secretary of War : 

W. W. WOTHERSPOON, 
Major General^ Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Adjutant Genercd. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ABSENCE: Leave of; payment for accumulated leave not taken. 

A former civilian clerk of the Quartermaster Corps employed in 
Alaska at a salary of $1,500 per annum was discharged without 
prejudice in pursuance of the law providing for the substitution of 
civilian employees in the Quartermaster Corps by men enlisted for 
that purpose. At the time of his discharge he had three months' 
annual leave which had accrued to his credit in accordance with 
War Department Circular A of January 12, 1913, which provided, in 
effect, for the accumulation of unused annual leaA^e not to exceed 120 
days for employees, citizens of the United States, on duty in Alaska 
and other places mentioned. He presented a claim for pay for such 
leave at the rate he was receiving when discharged. 

Held., That the claimant was not entitled to pay for leave of ab- 
sence of which he had failed to avail himself during the period 
of his employment, and that the claim could not be approved. 10 
Comp. Dec. 15. 

(2-152.1, J. A. G., Apr. 17, 1914.) 



ADVERTISING: In newspapers; payment for, at sworn rates. 

A newspaper requested a revision of its account with the Govern- 
ment for advertising from July 3, 1913, to February 23, 1914, so as to 
allow credit for a higher rate than that applied in the settlement of 
the accoimt. It was claimed that the paper had adopted a new 
schedule of rates which became effective July 1, 1913, but it was 
unable to show the customary receipt of acknowledgment thereof, 

363 



364 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

and had only the office record that it Avas forwarded. The act of 
June 20, 1878 (20 Stat., 216), required advertising accounts to be paid 
for at a price not to exceed commercial rates charged to private indi- 
viduals, with the usual discounts, such rates to be ascertained from 
sworn statements to be furnished by the proprietors or publishers of 
the newspapers proposing so to advertise. The department had no 
record of the receipt of the revised schedule, and if one had been 
received it would have requested the sworn statement required by the 
statute. 

Ileld^ that under the act of June 20, 1878, as well as under the law 
regulating contracts by correspondence, the rates filed and supported 
by the sworn statement required by the statute amounted to an offer 
which continued until notice of the revocation thereof by the adop- 
tion of a new schedule was actually brought home to the department 
(9 Cyc, 296) ; that until then all advertising must be regarded as 
having been given and accepted at the old rates ; and that the depart- 
ment was without authoritv to allow the credit asked for. 
(76-741, J. A. G., Apr. 28, 1914.) 



ARMY: Appointment to, from civil life; qualifications 6i candidates for 
second lieutenant of Engineers. 

Section 5 of the river and harbor act of February 27, 1911 (36 
Stat., 957), provided in part that — 

" To become eligible for examination and appointment, a civilian 
candidate for the appointment as second lieutenant [of Engineers] 
must be an unmarried citizen of the United States between the ages 
of twenty-one and twenty-nine, who holds a diploma showing grad- 
uation in an engineering course from an approved technical school, 
and is eligible for appointment as a junior engineer under the En- 
gineer Bureau of the War Department." 

Section 3 of Civil-Service Eule VI provided that the term of 
eligibility of an applicant for an appointment should be one year 
from the date on which the name of the eligible was entered on the 
register, which term might be extended under certain conditions. 

Held., that the statute was explicit in prescribing the qualifications 
of an applicant for appointment as second lieutenant of engineers 
from civil life, and that, before a candidate could be admitted to ex- 
amination for such appointment, it was necessary that he should be 
eligible for appointment as junior engineer under civil-service rules 
at the time of said examination. 

(64-213. J. A. G., Apr. 11, 1914.) 



INDIANS: Citizenship of; constitution of the militia. 

The question arose as to whether certain Indians enrolled at the 
Ignited States Indian School at Phoenix, Ariz., were citizens within 
the meaning of section 1 of the militia act of January 21, 1903, as 
amended by the act of May 27, 1908 (35 Stat.^ 399), which reads in 
part as follows: 

" The militia shall consist of eveiy able-bodied male citizen of the 
respective States and Territories and the District of Columbia, and 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 365 

every able-bodied male of foreign birth who has declared his inten- 
tion to become a citizen, who is more than eighteen and less than 
forty-five years of age." 

Eeld^ that Indians born within the territorial limits of the United 
States, members of and owing allegiance to one of the Indian tribes 
recognized as a tribe by the Federal Government, were not citizens 
by birth within the meaning of section 1 of the fourteenth amend- 
ment to the Constitution of the United States, and could become citi- 
zens only by being naturalized under some treaty or statute; and, 
upon the understanding that the Indians mentioned were in such 
condition and had not been so naturalized, held further^ that they 
were not citizens within the meaning of section 1 of the militia act of 
January 21, 1903, as amended by the act of May 27, 1908. 

(13-ill.2, J. A. G., Apr. 11, 1914.) 



LEASES: Repairs to building for the Signal Corps; damage by fire. 

The building leased for the use of the Signal Corps laboratory in 
Washington, D. C, was partially destroyed by fire March 18, 1914. 
The lease contained a provision relative to repairs as follows: 

" That the party of the first part [the United States] shall make 
all such betterments and repairs of every kind as may be deemed 
necessary for the purpose for which the premises are used, and upon 
the expiration of the term of this lease, and of any renewal thereof 
(or on relinquishment under the reservation therefor), shall sur- 
render the premises in as good condition as they now are, the usual 
wear, inevitable accidents, and loss by fire excepted." 

Held^ that the provision in the lease relative to the making of such 
betterments and repairs as might be deemed necessary for the pur- 
poses for which the premises were used, referred only to such altera- 
tions and repairs as might be required for the particular purposes 
specified, and not to repairs in the ordinary acceptation of the term, 
and that the general rule that a lassee, in the absence of express cove- 
nant, is not bound to rebuild or repair in case of loss by fire, as well 
as the express exception of losses by fire from the provision to sur- 
render the premises in as good condition as they were at the time of 
the execution of the lease, relieved the United States from any obli- 
gation to make repairs necessitated by said fire. 

(80-718, J. A. G., Apr. 16, 1914.) 



MEDICAL ATTENDANCE: Soldier on pass; status as to duty. 

A private soldier stationed at Fort Davis, Alaska, while absent on 
a pass extending from 6.30 p. m. to 6 a. m. of the second day follow- 
ing, received a serious gunshot wound in a house which he was visit- 
ing, from which wound he afterwards died. At the time of receiving 
this wound he had ample time in which to return to his station before 
the expiration of his pass. He was taken by his comrades to a private 
hospital where he received hospital and medical treatment for which 
treatment a bill was rendered. 

Held^ that as the soldier was absent from his regular station on 
pass at the time he received the injury he was not in a duty status so 



366 DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

as to entitle him to civilian medical attendance, and having by his 
own act placed himself beyond the reach of the means of medical 
attendance provided by the Government, he V7as not entitled to be 
treated at a private hospital at Government expense. Held there- 
fore^ that the bill for services rendered by the hospital could not be 
paid. The opinions contained in paragraph 8, page 254, Dig. Op. 
J. A. G., 1912, in so far as they expressed the rule that an officer or a 
soldier absent from duty for his own purposes under verbal pemiit 
or pass not exceeding 24 hours is entitled during such absence to 
civilian medical attendance at Government expense, were overruled. 
(60-227.6, J. A. G., Apr. 1, 1914.) 



OFFICES: Holding two; National Home for Disabled Volunteer Soldiers. 

A colonel on the retired list of the Army receiving as such a salary 
of $3,750 per annum, was serving as governor of a national home for 
disabled volunteer soldiers at a salary of $3,000 per annum, which 
latter position was established by section 4829, Revised Statutes, as 
amended by the act of June 28, 1902 (32 Stat., 472). 

Held^ that such retired officer was entitled to occupy the position 
of governor of a national home and receive the compensation there- 
for, notwithstanding the fact that he was a retired officer receiving 
more than $2,500 per annum, as an officer of the home was not an 
officer of the United States within the meaning of section 2 of the 
act of July 31, 1894 (28 Stat., 205). 8 Comp. Dec, 443. 

(88-541.1, J. A. G., Apr. 11, 1914.) 



PRIVATE PROPEHTY: Loss of, at post laundry; bailment for mutual 
benefit. 

The clothing of certain soldiers was stolen from the post laundry, 
where the articles had been left for pressing or washing. On shut- 
ting down the laundry on the evening of the night preceding the 
theft the superintendent had personally inspected all the windows 
and doors and was positive that they had been securely locked. The 
laundry was entered by breaking the glass in a window, removing 
the glass, and then unfastening the window. 

Ileld^ that this case was an ordinaiy bailment for mutual benefit in 
respect to which the rule was well settled that the bailee is held to 
the exercise of ordinary care in relation to the subject matter of the 
bailment and is responsible only for ordinary negligence (5 Cyc, 
184) ; and that as it appeared that the precautions taken to prevent 
this theft were those that would have been taken by a cautious man, 
and as there was no express undertaking on the part of the laundry 
to insure the property, the laundry was not liable for the loss. 

(18-410, J. A. G., Apr. 4, 1914.) 



PRIVATE PROPERTY: Stoppage of pay of soldiers to reimburse damages 
to; fifty-fourth article of war; liability for tort. 

The place of business of a private individual near Galveston, Tex., 
was burned and indications were that the fire was caused by soldiers, 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 367 

but a board of officers convened for the purpose of inquiring into and 
reporting upon the matter was unable to ascertain from the evidence 
what particular men had set it on fire. The board fixed upon an 
amount of damage which the owner agreed in writing to accept in 
full satisfaction of his claim. 

Held^ that the claim could not be settled as one against the Gov- 
ernment, as the latter is not responsible for the unlawful acts of 
its soldiers or employees, and that the ordinary remedy was by 
suit agains the individuals who committed the trespass or by appli- 
cation for relief by Congress. Held further^ that the case seemed 
to be one coming under the provisions of the fifty-fourth article of 
war, which provides for reimbursement out of their pay for damage 
to private property growing out of torts committed by soldiers; and 
advised^ that the board be reconvened for the purpose of submitting 
a definite recommendation under that article, and that the board be 
informed that the issues should be determined, not beyond a reason- 
able doubt, but by a preponderance of evidence. 

(18-420, J. A. G., Apr. 4, 1914.) 



PUBLIC PROPERTY: Issued to the militia; accountability; charging 
appropriations. 

The State of Montana was about to turn back to the United States 
certain sabers and equipments which had been issued to it for the 
use of its organized militia, but were no longer required for such 
purpose. The sabers were still serviceable, and it was desired to 
repair and reissue them to the organized militia of other States 
making requisition therefor. Section 1661, Revised Statutes, as 
amended, appropriat&s annually $2,000,000 for " providing arms, 
ordnance stores, quartermaster stores, and camp equipage for issue 
to the militia." Section 8 of the act of May 27, 1908 (35 Stat., 401), 
amending section 13 of the militia act of January 21, 1903 (32 Stat., 
777), appropriated $2,000,000 for the purchase or manufacture of 
arms for equipping the organized militia, without charging allot- 
ments to the several States from the appropriation made by section 
1661, Revised Statutes. 

Held^ that if said property was issued at the expense of the appro- 
priation contained in section 1661, Revised Statutes, on return of 
the same, a corresponding credit should be given to the State's allot- 
ment under section 1661, Revised Statutes, equal to the actual value 
of such property when returned, and the State thereupon relieved 
from further accountability therefor, but if it was issued under the 
provisions of section 8 of the act of May 27, 1908, the State, on sur- 
render of the property, would be relieved from further accountability 
for the same, but would not be entitled to any additional credit. 

Held further^ that the Ordnance Department would be authorized 
to repair said property at the expense of the appropriation under 
which it was issued, and to reissue the same to other organized mili- 
tia under authority of the appropriation out of which the property 
had been purchased. 

(58-300, J. A. G., Apr. 16, 1914.) 



368 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

PUBLIC PROPERTY: Sale of subsistence stores to other departments; 
10 per cent additional to cost price to cover wastage. 

The act of March 3, 1911 (3G Stat, 1047), provided for the sale by 
the War Department under Army Regidations of subsistence stores 
to other bureaus of said department, and to other executive depart- 
ments of the Government, or to the employees thereof, and further 
provided that — 

" When the transaction is between the Subsistence Department 
and another executive department of the Government or employees 
thereof, the price to be charged shall include the contract or invoice 
price and 10 per centum adclitional to cover wastage in transit, and 
the cost of transportation." 

A number of emergency rations had been sold by the Subsistence 
Department of the Army to the officer in charge of the navy yard 
at New York, and had been charged for on the bill at the cost or 
invoice price, with 10 per cent additional and the cost of trans- 
portation added. It was stated that no loss had occurred through 
wastage. 

Held, that the addition of 10 per cent to the cost price of subsist- 
ence stores sold to another executive department was a statutory 
requirement, and could not be disregarded, although no wastage was 
shown, and that the additional 10 per cent should be included in the 
bill rendered for this sale. 

(80-135, J. A. G., Apr. 23, 1914.) 



TAXATION: On operations of the Government; license fee for men enlisted 
in the Quartermaster Corps for chaufEeurs. 

The question arose as to the reimbursement for license fe«s at the 
rate of $2 each charged by the Philippine Government to certain 
enlisted chauffeurs in the Quartermaster Corps at Manila, P. I., for 
the privilege of operating motor vehicles, whether belonging to the 
United States Government or to private individuals. 

Held., that it is a fundamental principle of law that the property 
and instrumentalities of the United States Government by which 
it performs its proper governmental functions, can not be taxed by 
a State or municipality ; that the license fees in question were a tax 
and not a reimbiu-sement for services rendered, and practically 
amounted to a tax upon a Government instrumentality, which, if 
permitted, would amomit to a regulation by the Philippine Gov- 
ernment of the internal administration of the Army; that the Phil- 
ippine Government had no authority to require licenses of men 
enlisted as chauffeurs in the Army for operating Government auto- 
mobiles in the performance of their duties; and that the amounts 
advanced for licenses did not constitute a proper charge against the 
United States. 

(90-125, J. A. G., Apr. 21, 1914.) 



TELEGRAPH SERVICE: Charges for, to other departments of the Gov- 
ernment; Washington-Alaska Military Cable & Telegraph System. 

The Chief Signal Officer of the Army recommended that a charge 
be made for official messages transmitted over the Washington- 
Alaska Telegraph & Cable System in Alaska by officials of the Terri- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 369 

tory of Alaska and by departments other than the War Department, 
of one-half of the established commercial rate as fixed by the Post- 
master General for Grovernment messages transmitted over commer- 
cial Pacific cables. 

Held^ that there -was no legal objection to this action, in view of 
the authority conferred upon the Secretary of War by the act of 
May 26, 1900 (31 Stat., 206), authorizing commercial business to be 
done over the said system under such conditions as might be deemed 
by him " equitable in the public interests," and that the charge so 
fixed would probably be accepted, in the absence of a showing to the 
contrary, as a proper charge to other departments of the Govern- 
ment for the cost of the service furnished them; and held further^ 
that payments made by other departments for services so rendered 
might be accounted for and paid into the Treasury of the United 
States as prescribed for commercial business. 

(80-471, J. A. G., Apr. 8, 1914.) 



TRAVEL ALLOWANCES: Medical officers discharged with one year's pay; 
mileage and transportation of private property. 

The act of March 2, 1901 (31 Stat., 902), provides: 

"That hereafter when an officer shall be discharged from the 
service except by way of punishment for an offense, he shall receive 
for travel allowances from the place of his discharge to the place of 
his residence at the time of his appointment or to the place of his 
original muster into the service four cents per mile." 

Two medical officers were honorably discharged from the service 
of the United States with one year's pay under the provisions of 
section 5 of the act of April 23, 1908 (35 Stat., 67). 

Held, that the mileage allowance provided for by said act of March 
2, 1901, must be treated as a full compensation for all traveling 
expenses from place of discharge to place of original muster into the 
service, and that the officers were not entitled to transportation of 
their baggage and mounts at Government expense on such discharge. 

(94-236, J. A. G., Apr. 4, 1914.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

APPOINTMENT: Member of Army Nurse Corps; time of taking effect; 
expenses. 

An appointment in the Army Nurse Corps was mailed to the 
appointee December 23, 1913, at a civilian hospital in Colorado, where 
she was employed, together with a blank form of oath for execution 
and return. She was informed that upon receipt of the oath duly 
executed, the necessary orders and transportation request would be 
issued to her, and that she should not commence her journey to her 
future place of duty until after receipt of assignment orders. The 
oath was executed December 29, 1913, and received back by the Sur- 

93668°— 17 24 



370 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEBAL. 

geon General January 2, 1914, whereupon an order was forwarded to 
her directing her to pi*oceed without delay to Letterman General 
Hospital, San Francisco, Cal., for assignment to duty. This order 
was received by her January 8, 1914, and she reported at the Letter- 
man General Hospital January 10 following. She presented a claim 
for living expenses between December 29, 1913, date of taking the 
oath, and January 8, 1914, date of receiving her appointment and 
travel orders. 

Section 19 of the act of February 2, 1901 (31 Stat., 753), establish- 
ing a Nurse Corps (female) in the Army, provided that "they shall 
be entitled to quarters, subsistence, and medical attendance during 
illness." 

Held^ that during the period covered by her claim, said nurse was 
in a duty status awaiting assignment and travel orders, and under 
such circumstances was entitled to the pay and allowances authorized 
by law and regulations covering the period from date of taking the 
oath to date of receipt of and compliance with her orders to proceed 
to Letterman General Hospital, the charge for subsistence and room 
rent not to exceed what it would have cost the United States to have 
furnished her subsistence and the quarters, heated and lighted, which 
she occupied, and not to exceed such allowances as were authorized 
by regulation. 

(Comp. George E. Downey, Apr. 2, 1914.) 



CLERKS AND EMPLOYEES: Pay during suspension under charges; re- 
stored to duty. 

A clerk in a United States local land office was suspended from 
duty without pay pending the investigation of charges against him 
involving an assault upon the register of the office. He was acquitted 
of the charge of felonious assault after trial before a jury. He was 
then, by order of the Commissioner of the General Land Office, re- 
stored to duty, and transferred to another office. The Commissioner 
directed that his salary be paid from and including the date of 
suspension. 

Held, that where an employee has been legally suspended without 
pay by authority of the head of a department pending investigation 
of charges, and after the investigation an order is issued restoring 
him to duty with pay from date of suspension^ such order will not 
be construed as operating retroactively to entitle the employee to pay 
during such period. See case of Lounsberry, 11 Comp. Dec, 66. 

(20 Comp. Dec. 505, Jan. 16, 1914.) 



DAMAGES: Liquidated; contract for quantities at unit rates; delay in 
completion. 

A construction company entered into a contract with the United 
States at unit prices to furnish 140 oak piles, 350 tons of stone, and 
350 cords of brush, and to drive the piles and place the stone and 
brush as specified, the evident purpose being to protect the beach 
front at a certain lighthouse station from wave action and erosion. 
The contract provided for the deduction of $5 per day as liquidated 
damages for each and every day's delay in the completion of the work 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 371 

beyond the time specified therefor. There was a delay of 16 days in 
completion of the work beyond the time limit. 

Held, that from the nature of the contract there was no possibility 
that the same damages would result from a partial as from an entire 
failure to complete the work in time, and the provision for liquidated 
damages, viewed in connection with the subject matter of the con- 
tract, was palpably not intended as a liquidation of damages for the 
delay, and must be interpreted as a provision for a penalty, and that 
such provision was enforcible only to the extent of any actual dam- 
ages occasioned to the Government by the contractor's delay. 19 
Comp. Dec. 20; 20 Id. 16. 

(Comp. George E. Downey, Apr. 15, 1914.) 



PHIIilPPINE SCOUTS: Higher pay for services with; absence on sick 
leave taken while surveyor of port. 

Section 36 of the act of February 2, 1901 (31 Stat., 757), provided 
for the organization of the Philippine Scouts into squadrons or bat- 
talions corresponding to similar organizations in the cavalry and 
infantry arms of the service, and further provided that — 

" The majors to command the squadrons and battalions shall be 
selected by the President from captains of the line of the Regular 
Army, and while so serving they shall have the rank, pay, and allow- 
ances of the grade of major. The captains of the troops or com- 
panies shall be selected by the President from first lieutenants of the 
line of the Regular Army, and while so serving they shall have the 
rank, pay, and allowances of captain of the arm to which assigned." 

A captain in the Army was detailed for duty with the Philippine 
Scouts under said law. During said detail he was on detached serv- 
ice as surveying officer of the port of Manila, P. I., from April 11 to 
June 26, 1912, and was absent sick from June 27 to September 14, 
1912. He was paid the pay and allowances of a major. The Auditor 
disallowed the excess above the pay and allowances of captain on the 
ground that the law did not authorize the higher pay to an officer 
unless he was actually performing duty with the Philippine Scouts. 

Held, that under the law above quoted it was not sufficient that an 
officer be merely detailed with the Scouts to entitle him to the higher 
pay of the grade, but that he must perform service with them, and if 
the service was not rendered, the higher pay was not earned. 

Held further, that duty as surveying officer at Manila for a part 
of the time was not service with the Scouts; that, as he was absent 
sick from this duty, such absence would not be regarded as service; 
and that the claim for higher pay was properly disallowed. 

(Comp. George E, Downey, Apr. 20, 1914.) 



TIME: Computation of for pay purposes; days in February; leave without 
pay. 

A clerk of class three in the War Department was absent on au- 
thorized leave without pay for thirty days from 10.40 a. m., of Feb- 
ruary 24, 1914, and returned to duty March 27, 1914. For such ab- 
sence in February, the Auditor for the War Department, in making 
settlement, deducted from her monthly salary for that month pay 



372 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

for the number of days necessary to make the month one of thirty 
days, or two days m addition to the number actually absent during 
the monthj corresponding to the theoretical days of February 29th 
and 30th. The act of June 30, 1906 (34 Stat., 763), provided certain 
rules for the division of time and computation of pay for services 
rendered, as follows : 

1. Annual compensation shall be divided into twelve equal install- 
ments, one for each calendar month. 

2. In paying for a fractional part of a month one-thirtieth of a 
monthly installment or of a monthly compensation shall be the daily 
rate of pay. 

3. Every month shall be held to consist of thirty days. 

4. The thirty-first day of a thirty-one day month shall be ex- 
cluded from computation. 

5. February shall be treated as if it actually had thirty days. 

6. One entering the service during a thirty-one day month and 
serving until the end thereof shall be paid from the date of entry 
to the thirtieth inclusive. 

7. One entering the service during February and serving until 
the end thereof shall be paid a month's pay less as many thirtieths 
as there were days elapsed prior to date of entry. 

8. One day's absence on the thirty-first of a month shall forfeit a 
day's pay. 

Ileld^ that the theoretical days of the 29th and 30th of February 
do not attach themselves to nor confer any benefit for services per- 
formed on any days of said month previous to the 28th, are used 
only as a basis of computation, and, by virtue of the express pro- 
visions of the statute, they attach themselves to and become prac- 
tically a part of the 28th day. Held fwther^ that the action of the 
Auditor for the War Department was correct, and deduction for 
absence should be made for two days in addition to those accruing 
up to and including the 28th, in computing pay due for the month 
of February. 

The decision in 13 Comp. Dec, 205, so far as it conflicted with 
this principle, and others following that as a precedent were over- 
ruled. 

(Comp. George E. Downey, April 30, 1914.) 



TRANSPORTATION: Freight rates; land-grant deduction; goods not owned 
by the United States. 

Certain furniture purchased for the use of the United States was 
shipped on a Government bill of lading from York, Pa., to San 
Diego, Cal., under a contract by which the contractor was to furnish 
and install the same in the post-office building at the latter place. 
The title to the furniture remained in the manufacturer and did not 
vest in the United States until said furniture was transported to and 
installed in the Federal building at San Diego. 

Held, that where the Government purchases property to be de- 
livered at a certain point, and assumes no interest therein nor obliga- 
tion with reference thereto until such delivery, and where the trans- 
portation charges are not payable by the United States, shipment 
thereof is of no concern to the Government, and the use of a Govern- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 373 

ment bill of lading for the shipment is improper. Held further^ that 
the use of the Government bill of lading was not conclusive of the 
question, and that, as the property transported was not Government 
property, it should bear the full commercial rates without land-grant 
deduction. 

(Comp. George E. Downey, Apr. 4, 1914.) 



TRANSPORTATION: Passenger party rates; one request, but no ticket 
issued. 

Three separate parties of more than 10 men each were transported 
over the El Paso & Southwestern Railroad system. One transpor- 
tation request was issued for each party, and the members of each 
party traveled together, but no tickets were issued either for the 
parties as a whole or for the individuals, but transportation was pro- 
vided on the regular transportation requests. The company claimed 
for passenger service furnished at individual rates, contending that 
the case did not fall within the company's tariif rates for party fares, 
which provided only for " one way continuous passage fares for 
parties of 10 or more adults * * * traveling together on one 
ticket, where cash is paid on delivery of ticket." It was stated that 
no party ticket was requested or furnished, and that none of the 
parties traveled together on a party ticket. 

Held, that the substantial difference between party service and in- 
dividual service was that in the former case the entire number of 
passengers traveled together as an entity, while in the latter case each 
individual traveled as a separate entity and was dealt with by the 
company as one for whom a separate ticket is furnished and ac- 
counted for by the conductor ; that the service in said case conformed 
substantially to party service; and that the cash condition in the 
party tariff did not affect the rate to be charged the Government (20 
Comp. Dec. 77). Held therefore^ that settlement should be made on 
the party-rate basis. 

(Comp. George E. Downev. Apr. 20, 1914.) 



DECISIONS OF THE COURTS. 

(Digests prepared in the oxiice of tlie .Judge Advocate Genei'al.) 

DAMAGES: Liquidated; extension of time by supplemental contract. 

A contract for the construction of an electric lighting system at 
Fort Wm. McKinley, P. I., provided that the work should be com- 
pleted by October 27, 1907, and in case of default the contractor 
agreed to pay $25 a day as liquidated damages for delay beyond the 
period fixed for completion. Two days before the time for com- 
pleting the work a further contract was entered into extending the 
time for completion to December 31, 1907, and by this time the work 
was duly completed and the same was accepted by the Government. 
In the settlement, the sum of $1,625 was deducted, which included 
liquidated damages for time of delay beyond October 27, 1907, the 
date fixed in the original contract for the completion of the work, 
and also the sum of $405 for the services of a Government electrical 
engineer during such extension period. 



374 DIGEST OF OPINIONS OF THE JUDOE ADVOCATE GENERAL, 

Held, that the officer who made the first contract had authority to 
modify it if he did not thereby give away any accrued rights of tlie 
Government, and as no right to liquidated damages had accrued at 
the time of the modification of the original contract, and as the work 
had been completed within the extended time, the contractor was 
improperly charged with the liquidated damages and was entitled to 
judgment for the amount retained. 

Gervumn c& Co. v. United States, IT. S. Court of Claims, No. 
30830, Mar. 16, 1914.) 

EVIDENCE: Credibility of an accused as a witness. 

The court had charged the jury in a murder trial where the de- 
fendant has testified on his own behalf that — 

"A witness who has no interest whatever in the outcome of a law- 
suit, who is entirely disinterested, other things being equal, is en- 
titled to very much more credence than a witness who is interested 
in the verdict of the jury. Especially is that so where the witness is 
contradicted by other witnesses." 

Held, that this instruction was erroneous and that — 

"A disinterested witness is not necessarily entitled to any more 
credit than an interested witness, but the whole question of his 
credibility is for the jury." 

{People V. Gerdvine, Court of Appeals of New York, 104 N. E., 
129.) 

PARDONS: Conditional; revocation of. 

The relator had been convicted and sentenced to imprisonment for 
life. The Governor of the State granted him a pardon upon the 
condition that the beneficiary must conduct himself as a good and 
law-abiding citizen and not again violate the laws of the State. The 
condition was accepted and the prisoner released ; but thereafter the 
governor issued a proclamation revoking and annulling the condi- 
tional pardon and ordering the rearrest and confinement of the 
prisoner on the ground that since the said conditional pardon was 
granted further evidence had been presented, and it was not thought 
that the prisoner was deserving of clemency at that time. Upon 
hearing on a writ of habeas corpus. 

Held, that the power to grant an absolute pardon carries with it 
power to grant a conditional pardon and to make the pardon con- 
tingent upon any conditions, so long as they are not illegal, that the 
pardoning power desires to impose ; that the power to grant pardons 
does not carry with it the power to revoke them; that a conditional 
pardon, like an unconditional one, could not, when granted, be re- 
voked by the pardoning power except for a violation of a condition ; 
and that the governor could not revoke a conditional pardon on the 
ground that after-discovered evidence lead him to believe that clem- 
ency Avas ill advised. Held further., that a pardon once granted will 
not be revoked merely upon the allegation that it was procured by 
fraud, but the fraud must be judicially ascertained. The prisoner 
was therefore discharged. 

{Ex parte Rice, Criminal Court of Appeals of Texas, 162 S. W., 
891.) 



BULLETIN 25. 

BtjlletinI war department, 

No. 25. J Washington, Jutie 18, 1914.. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of May, 1914, and of certain decisions of 
the Comptroller of the Treasury and of the courts, is published for 
the information of the service in general. 
[2094269 G— A.G.O.] 
By order of the Secretary or War: 

W. W. WOTHERSPOON, 
Major General, Chief of Staff. 
Official : 

GEO. ANDREWS, 

TJie Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ALASKAU RArLIlOAI>: Detail of Cavalry officer as one of a commission 
to locate; detail of officers of the Engineer Corps; additional compensa- 
tion. 

The act of March 12, 1914 (Pub. No. 69, 63d Cong.) provided for 
the location, construction, and operation of railroads in Alaska, and 
empowered the President, among other things — " to employ such 
officers, agents, or agencies, in his discretion, as may be necessary to 
enable him to carry out the purposes of this act; to authorize and 
require such officers, agents, or agencies to perform any or all of the 
duties imposed upon him by the terms of this act; to detail and 
require any officer or officers in the Engineer Corps in the Army or 
Nav}'^ to perform service under this act ; to fix the compensation of all 
officers, agents, or employees appointed or designated by him ; " etc. 

Under authority of said act, it was proposed to create an Alaskan 
engineering commission to locate the railroad in Alaska, and it was 
also proposed to appoint an officer of the Cavalry of the Army as a 
member of said commission. 

Held, that the duties which the officer would be called upon to per- 
form would be within the prohibition of section 1222, Revised Stat- 
utes, and that he could not accept the appointment and perform the 
duties thereunder without vacating his commission in the Army. 

(64-312, J. A. G., May 1, 1914.) 

A joint resolution having been introduced in Congress authorizing 
the President " to detail and require " the officer in question to per- 
form duty in connection with the said Alaskan railroad. 

Held further, that such resolution would remove the prohibition of 
section 1222, Revised Statutes, against the appointment of the officer ; 

375 



376 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

that the pay of the officer ■would continue while detailed as a member 
of said commission ; and that under the authority conferred upon the 
President "to fix the compensation of all officers, agents, or em- 
ployees appointed or designated by him" for service in connection 
with said railroad, it was within his power to supplement the pay of 
the officer by such amount as he mght deem equitable and to supple- 
ment the pay of the other officers of the Army and the officers of the 
Navy authorized to be detailed for such service. 
(Idem, May 18, 1914.) 

BAGGAGE: Transportation of change of station allowance of, of oflacers on 
duty with, the Government of the Canal Zone; appropriation available. 

An officer ordered to duty with the Government of the Canal Zone 
desired to have a part of his change of station allowance of baggage 
transported from the United States to the Canal Zone on Govern- 
ment bill of lading. 

Ileld^ that the assignment of officers of the Army to duty with the 
Government of the Canal Zone was authorized by special law which 
duty was purely civil in character, and that the expense of transport- 
ing the change of station allowance of baggage of an officer so as- 
signed from the United States to his post of duty with the Govern- 
ment of the Canal Zone, should be borne by the appropriation for 
said Government, and not by the appropriation for the transporta- 
tion of the Army. 

(94-233, J. A. G., May 12, 1914.) 



BURIAL EXPENSES: Of accepted applicant for enlistment; appropriation. 

An accepted applicant for enlistment in the Army died at Colum- 
bus Barracks, Ohio, before regular enlistment in the service and 
when presumably he was receiving medical treatment at the expense 
of the Government under authority of the act of Congi-ess approved 
March 2, 1913 (87 Stat., 718), which appropriated, among other 
things, " for medical care and treatment not otherwise provided 
for, * * * of applicants for enlistment." 

Ileld^ that the care and custody of the remains of the deceased were 
by his death cast upon the Government, and it became its duty to dis- 
pose of them in a proper manner in the interests of decency and sani- 
tation where no one better entitled to the custody applied to perform 
this service, and that the expenses should be charged against the 
appropriation for incidental expenses of the recruiting service under 
the appropriation for incidenal expenses of the Quartermaster 
Corps. See 11 Comp. Dec, 789. 

(5-244, J. A. G., May 26, 1914.) 



COMMAND: 0-fficers of the Quartermaster Corps in charge of post tem- 
porarily vacated; functions of commanding officer. 

A major of the Quartermaster Corps came into the charge of a post 
temporarily vacated by its garrison, under the operation of para- 
graph 214, Army Eegulations, 1913, which provided that military 
posts temporarily evacuated by troops will be under charge of the 



DIGEST OF OPIISriONS OF THE JUDGE ADVOCATE GENEEAL. 377 

Quartermaster Corps, Certain troops of the Quartermaster Corps 
and of the Hospital Corps were left at the post. A line officer, junior 
to the quartermaster in charge, was under orders to proceed to the 
post and report to the commanding officer. 

Paragraph 18 of the same regulations provided that an officer of 
the Quartermasters Corps " shall not assume command of troops 
unless put on duty under orders which specially so direct, by author- 
ity of the President," and paragraph 13 of the same regulations pro- 
vided that — 

" Command is exercised by virtue of office and the special assign- 
ment of officers holding military rank who are eligible by law to 
exercise command " ; and that an officer could not put himself on 
duty without orders from competent authority. 

II eld ^ that a major of the Quartermaster Corps coming into the 
charge of a post, although eligible to command could not place him- 
self in command of the post or exercise the functions of a command- 
ing officer without special assignment from the President, and could 
not as such commanding officer issue direct orders directing travel or 
appoint a summary court officer who would have jurisdiction to try 
members of the Hospital Corps or any other than members of the 
Quartermaster Corps, or appoint a recruiting officer; that he should 
sign official communications as "quartermaster in charge" and not 
as commanding officer, and since there was no commanding officer at 
the post, the signature of the quartermaster in charge should be 
accepted as equivalent to that of the commanding officer, except 
where such signature implied the performance of duty which could 
be performed only by the commanding officer; that should a line 
officer assume command of the post he would not be authorized to 
place members of the Quartermaster Corps on guard at the post, as 
that would be requiring them to perform military duties not pertain- 
ing to their corps, but that they might be placed on guard by the 
quartermaster in charge if, in his opinion, a guard was necessary to 
the safekeeping of the property under his care at the post ; and that 
should a junior line officer arrive at the post pursuant to orders re- 
quiring him to report to the commanding officer thereof, he would 
be in command of the post by virtue of his commission and special 
assignment. 

(20-410.1, J. A. G., May 9, 1914.) 



DETACHED SERVICE: With the Philippine Constabulary; act of April 
27, 1914; Bureau of Insular Affairs. 

The act of August 24. 1912 (37 Stat., 571), which prohibited, under 
certain circumstances, detached service of officers of company grade, 
])rovided that such prohibition should not apply — 
" to detachment or detail of officers for duty * * * in the Philip- 
pine Constabulary until the first day of January, nineteen hundred 
and fourteen," and further that — 

"■ Hereafter no officer holding a permanent commission in the 
Army with rank below that of major shall be detailed as assistant to 
the Chief of the Bureau of Insular Affairs, or * * * as chief or 
assistant chief (Director or Assistant Director) of the Philip- 
pine Constabulary, and no other officers of the Army shall hereafter 



378 DIGEST OF OPINIONS OF THE JUEK5E ADVOCATE GENERAL. 

be detailed for duty with the said constabulary except as specifically 
pro\4ded by law." 

The detached-service law of April 27, 1914 (Pub. No. 91, p. 7), 
similarly prohibited the detachment of officers of field grade, ana 
further provided that the prohibition should not apply — 
" to the detachment or detail of officers for duty in connection with 
the construction of the Panama Canal until after such canal shall 
have been formally opened, or in connection with the Alaska Road 
Commission or the Alaska Railroad or the Bureau of Insular 
Affairs." 

IleLd^ that the detail of officers of the Army for service as Chiefs 
of the Philippine Constabulary could not properly be said to be de- 
tails for duty in connection with the Bureau of Insular Affairs, and 
hence such details were not within the exception in the act of April 
27, 1914. Ueld^ therefore^ that the prohibitions in the statute applied 
to details of officers for service with the Philippine Constabulary. 

(6-124, J. A. G., May 2, 1914.) 



DETACHED SERVICE: Officer above the grade of major detailed to 
vacancy in a staff department; duty "with, troops. 

Section 26 of the act of February 2, 1901 (31 Stat, 755), pro- 
vided that future vacancies in the staff departments falling within 
the purview of that section which could not be filled by promotion 
should be filled by detail from the line of the Army, and that — 
"All officers so detailed shall serve for a period of four years, a't the 
expiration of which time they shall return to duty with the line, and 
officers below the rank of lieutenant colonel shall not again be eligible 
for selection for duty in any staff department until they shall have 
served two years with the line." 

The act of April 27, 1914 (Pub. No. 91, 63d Cong., p. 7), appro- 
priating for the Army for the fiscal year 1915, provided that — 
"iVfter September first, nineteen hundred and fourteen, in time of 
peace, whenever any officer holding a permanent position in the line 
of the Army, with the rank of colonel, lieutenant colonel, or major, 
shall not have been actually present for duty for at least two years 
out of the last preceding six years with a command composed of 
not less than two troops, batteries or companies of that branch of 
the Army in which he shall hold said commission, such officer shall 
not be detached nor permitted to remain detached from such com- 
mand for duty of any kind except as hereinafter specifically pro- 
vided " — 

but further provided that nothing in said act should prevent the 
redetail of officers above the grade of major to fill vacancies in the 
various staff corps and departments, as provided by section 26 of 
the act of February 2, 1901. 

An officer above the grade of major was serving a detail in a staff 
department under section 26 of said act of February 2, 1901, and 
would not, on September 1, 1914, have been on duty with troops for 
two years out of the last preceding six years. 

Tleld^ that the law did not require his relief from detail on that 
date, and that, if relieved, he would immediately be available for 
redetail to fill a vacancy within the purview of said section 26, irre- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 379 

spective of his former detail, and irrespective of his duty status 
during the previous six years. 
(6-124, J. A. G., May 11, 1914.) 



DOWATTONS: Of property and services to the TJnited States; placing im- 
provements. 

Private parties requested permission to remove a wooden picket 
fence surrounding a national cemetery and to replace the same by 
an artistic permanent fence, without expense to the United States. 

Section 3679, Revised Statutes, as amended by the act of February 
27, 1906 (34 Stat., 49), provided— 

" Nor shall any department or any officer of the Government accept 
voluntary service for the Government or employ personal service in 
excess of that authorized by law, except in cases of sudden emer- 
gency involving the loss of human life or the destruction of 
property." 

Held^ that there was no statute which prohibited the acceptance 
by Government officers of donations of personal property on behalf 
of the United States, but that as the proposition here involved the 
acceptance of both personal property and personal services, the 
offer could not be accepted, as it would amount to an acceptance 
of voluntary services, which was forbidden by the statute; but that 
there would be no objection to the acceptance of material for the 
construction of the fence, if sufficient funds were available for the 
removal of the old fence and the construction of the new one. 

(80-111, J. A. G., May 11, 1914.) 



EIGHT-HOUR LAWS: Public works of the United States; railroad to be 
used in the construction of a Government work. 

By the terms of a proposed contract a railroad company was to 
furnish all the labor and materials for the construction of a spur 
track from its main line to the site of a Government lock and dam 
under construction, and to transport material over said line for said 
Government work. The company was further required to procure 
the necessary right of way for the spur track and to maintain the 
track for a period sufficient for the construction of the lock and 
dam, not exceeding three years. It was further provided that the 
company should remove such portion of the spur track as might be 
on the Government reservation when the same was of no further 
use for said construction. A specified sum was named as compensa- 
tion for the construction of the spur track and for the transportation 
of materials. 

Held^ that as the title to the railway was to remain in the railway 
company and the track was not intended to become a part of the 
public work for the construction of which the material was to be 
transported over said road, the eight-hour law of August 1, 1892, 
as amended by the act of March 3, 1913 (37 Stat., 726), had no 
application. Held further^ that the act of June 19, 1912 (37 Stat. 
137), regarding hours of labor in Government contracts, did not 
apply, as said act expressly provided that nothing therein should 



380 DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENERAL. 

appl}^ " to contracts for transportation by land or water," and as 
it appeared that the whole purpose of the contract Avas to provide 
transportation of materials between the terminus of the railway and 
the lock and dam site. 

(32-213, J. A. G., May 1, 1914.) 



EIGHT-HOUR LAWS: Manufacture of tools and apppliances. 

An opinion was desired as to what tools, jigs, and fixtures re- 
quired for prosecuting Avork on a Government contract coming under 
the eight-hour laAV should be manufactured under said lavA'. 

Ileld^ that the manufacture of molds and forms made for and 
used solely in the manufacture of particular articles coming under 
the restrictions of thei eight-hour laAv should be regarded as a 
part of the manufacture of the particular articles and as coming 
under the provisions of said law ; but that tools which might be 
used on other contracts and which remain the property of the con- 
tractor, formed a part of his plant, and their manufacture should 
not be regarded as a part of the manufacture of the particular arti- 
cles covered by the contract, and hence were not within the eight- 
hour law. 

(32-300, J. A. G., May 14, 1914.) 



EIGHT-HOUR LAWS: Payment for overtime work; fixed salaries. 

Certain laborers were employed in the Quartermaster Department 
at Jeffersonville, Ind., beyond the legal limit of eight hours in one 
day, in packing and shipping Government supplies, and a roll was 
jjrepared for paying for this overtime. The men were under the 
impression that eight hours constituted a day's work, and had been in- 
formed that " if permissible under the laAv " an effort Avould be made 
to compensate them for the additional service. They were not spe- 
cifically appropriated for by law but were paid annual salaries from 
a lump-sum appropriation. 

Held., that section 3738. Revised Statutes, providing that — 
'' Eight hours shall constitute a day's work for all laborers, workmen, 
and mechanics Avho may be employed by or on behalf of the United 
States," does not amount to a contract between the Government and 
its laborers, but is in the nature of a direction by the Government to 
its agents {United States v. Martin,, 94 U. S., 400) ; that the Govern- 
ment Avas entitled to the full service of these men; aiid that they 
could not be alloAved anvthing beyond their stated compensations. 

(32-232, J. A. G., May 28, 1914.) 



IMPROVEMENTS: Roadways on land fronting national cemeteries; title 
of the United States; boundaries. 

It Avas proposed to improve the frontage of two national cemeteries 
Avithin the corporate limits of cities where the same abutted upon 
public highways, by the construction, in one ease, of a concrete Avalk 
with parking on either side to be set in grass, and in the other case 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 381 

by the construction of a sidewalk. The deeds to the United States for 
the lands in the national cemeteries, described the same by courses 
and distances, running to and along the side lines of the road or 
street on which they abutted. There was not sufficient land within 
the lines outside of the cemetery inclosures upon which to construct 
the improvements, so that they would have to rest partly or wholly 
upon the adjoining highway. 

The appropriation for maintaining and improving national ceme- 
teries in the sundry civil act of June 23, 1913 (38 Stat., 31), provided 
that no part of the sum appropriated — 

" shall be used for repairing any roadway not owned by the United 
States within the corporate limits of any city, town, or village." 

Held^ that where land is described by courses and distances, begin- 
ning at a point and running to a road or highway and thence on a 
line with the same, the measurements being exact, and extending 
only to the margin of such road or highway, the title to nO part of 
the road passes, and the grantee can claim nothing beyond the boun- 
dary line described (5 Cyc, 906 n. ; 8 Cent. Dig., Boundaries, § 123) ; 
that the Government therefore did not own any part of the roadways 
upon which the national cemeteries abutted, and that the appropria- 
tion for the maintenance and improvement of national cemeteries 
was not available for the construction of the proposed improvements. 

(80-412.2, J. A. G., May 11 and 26, 1914.) 



ItlVINGr EXPENSES: Headquarters' clerk on temporary duty; flat or com- 
muted rate for living expenses. 

A headquarter's clerk submitted an itemized bill amounting to 
$31 to the Auditor for the War Department for reimbursement for 
his living expenses while on temporary duty with the headquarters 
of the second division at Texas City, Tex., the same being the full 
amount allowed by Army regulation for such expenses for the period 
covered by the claim. On submission of the question as to whether 
or not a regulation could be made which Avould authorize reimburse- 
ment for these expenses at a flat or fixed rate contingent only upon 
the performance of duty under competent orders, 

Held^ that as the pay of this clerk as well as that of all other clerks 
covered by the appropriation for headquarters of divisions, etc., was 
fixed by law, the same could not be increased or decreased by any reg- 
ulation of the department, and that it would not be competent to pre- 
scribe a flat rate of reimbursement by way of commutation of actual 
expenses contingent only upon the performance of duty under com- 
petent orders without legislation authorizing the same. 
'16-020, J. A. G., May 6, 1911.) 



MEDICAL COUPS: Reserve officers of the Organized Militia belonging to. 

A first lieutenant in the Medical Corps of the organized militia 
of Maryland was also a member of the Reserve Corps of the Army, 
and was about to receive orders in the latter capacity to proceed to 
Texas City, Tex., for active duty with the United States Army. At 
the time he Avas on leave from service with the militia attending the 
Army Medical School at Fort Leavenworth, Kans. Section 8 of 



382 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the act of April 23, 1908 (35 Stat., 68), provided that in emergencies 
the Secretary of War might order officers of the Medical Reserve 
Corps to active duty in the service of the United States, subject to 
certain provisions which did not preclude service with the militia 
or with the volunteer troops of the United States or any service with 
the United States in any other capacity, but said act also provided 
that — 

" when so serving with the militia or with volunteer troops, or when 
employed in the service of the United States in any other capacity, 
an officer of the Medical Reserve Corps shall not be subject to call 
for duty under the terms of this section." 

Held^ that the statute was intended to permit officers of the Medical 
Reserve Corps not designated for active duty to serve with the militia 
of the State while under the jurisdiction of the State as well as when 
called into active service of the United States, and that the officer 
should be regarded as serving with the militia when his relation to 
the militia is such that he is subject to orders as an officer of the 
same for any militia duty pertaining to his office therein, and that 
while this relation of service continued he was ineligible for designa- 
tion on active duty with the Medical Corps of the Army; hut held 
further^ that if gi'anted a leave of absence for the purpose of accept- 
ing active duty as a member of the Medical Reserve Corps, he would, 
during such period of absence, be eligible to be called into active 
service, as specified in said act of April 23, 1908. 

(e-227.4, J. A. G., May 19, 1914.) 



NURSES: Longevity pay; credit for service as contract nurses. 

A nurse in the Hospital Corps of the Army had, previous to her 
appointment as such, served a period with the Army as a contract 
nurse, during which time she was enrolled by the American Red 
Cross to assist the Army Nurse Corps in emergencies. 

The act of March 23, 1910 (36 Stat., 249), provided that female 
nurses of the Nurse Corps should receive — 

" fifty dollars per month for the first period of three years' service ; 
fifty-five dollars per month for the second period of three years' 
service; sixty dollars per month for the third period of three years' 
service; and sixty-five dollars per month after nine years' service in 
said Nurse Corps." 

Heidi that the service required to make up the three-year periods 
for purposes of pay must be service in the Nurse Corps, and that 
the prior service as contract nurse could not be counted in making 
up the three-year periods for the purpose of computing this nurse's 
pay. 

(6-227.2, J. A. G., May 14, 1914.) 



NURSES: Payment of reserve called into actual service; exceeding amount 
appropriated for; pay of Army as one fund. 

Section 19 of the act of February 2, 1901 (31 Stat., 753), provided 
that — 

"The Nurse Corps (female) shall consist of one superintendent 
'^'' * * and of as many chief nurses, nurses, and reserve nurses as 
mav be needed." 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 383 

The act of March 2, 1913 (37 Stat., 708), appropriated for the 
fiscal year 1914 "for one hundred and fifty nurses (female), 
$106,030," and the act of April 27, 1914 (Pub. No. 91, 63d Cong., 
p. 6), appropriated for the fiscal year 1915 a like amount for pay of 
"nurses (female)" without specifying any number, which amount 
was only sufficient to pay the 150 nurses at the rates authorized by 
law. Both acts contained a provision that all money appropriated 
for the " Pay of the Army " and " Miscellaneous," except the mileage 
appropriation, " shall be disbursed and accounted for by officers of 
the Qpartermaster Corps as pay of the Army, and for that purpose 
shall constitue one fund." 

Tleld^ that as appropriation was made for the fiscal year 1914 for 
only 150 nurses, that number could not be exceeded, and that under 
the terms of the law, reserve nurses if called into active service in 
excess of the number appropriated for during said fiscal year, could 
not be paid from the appropriation for the " Pay of the Army." 

Held further^ that the effect of the proviso regarding the use of 
the appropriations under the heads of " Pay of the Army " and 
"Miscellaneous," as one fund, was to permit the use of balances of 
items under said appropriations to supplement items that might be 
deficient (3 Comp. Dec. 604), and as no limit was placed upon the 
number of nurses by the act of April 27, 1914, supra^ the appropria- 
tion for nurses might be supplemented by unused balances of items 
under said general heads of appropriation should said appropriation 
prove insufficient by reason of the employment of additional nurses. 

(5-241, J. A. G.,'May 16 and 29, 1914.) 



E.ETIIIED OFFICERS: Assignment to staff duty; command and service 
with troops. 

Section 1255, Revised Statutes, provided that — 
" Officers retired from active service shall be withdrawn from 
command * * * " — 

and the act of April 23, 1904 (33 Stat., 264) , provided that— 

" The Secretary of War may assign retired officers of the Army, 
with their consent, to active duty in recruiting * * * and to 
staff duties not involving service with troops ; and such officers while 
so assigned shall receive the full pay and allowances of their re- 
spective grades." 

The question having been presented as to whether retired officers 
could be utilized for duty as acting quartermasters at military posts 
from which the garrisons had been temporarily withdrawn, but leav- 
ing at each post a detachment of enlisted men of the Quartermaster 
Corps. 

Held^ that said Section 1255, Revised Statutes, withdrew retired 
officers from command, and that as a certain number of enlisted men 
of the Quartermaster Corps was to be left at each post, it was clear 
that the service contemplated would involve a command, and would 
also be service with troops. Held further^ that the services of re- 
tired officers could not be thus availed of. 

(88-600, J. A. G., May 4, 1914.) 



384 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

TAXATION: Personal tax and jury duty; soldiers in the reserve. 

Information was desired as to whether, under the recent legislation 
increasing the enlistment period in the Army to seven years, the last 
four of which should be in the reserve, a soldier, during the reserve 
period, Avas exempt from poll and road tax and from jury duty. 

HeM^ that the status of soldiers of the reserve, so far as respects 
the matter under consideration, was similar to that of retired officers; 
that while the status continued they had no active duty to perform 
which would render a taxation on their polls or the requirement of 
jury duty an interference with their relation to the Federal Govern- 
ment ; and that during such period they were liable for such tax and 
duty, except in so far as the laws of the particular State where they 
might reside should otherwise provide. 

(90-143, J. A. G., May 12, 1914.) 



TEANSPORTATION: Cost of, where articles were purchased for a particu- 
lar use. 

Certain fencijig material was procured abroad for use of the 
Mounted Service School at Fort Riley, Kans., and shipped from New 
York, N. Y., to said fort on a bill of lading which indicated that the 
freight charges were to be paid from funds of the Mounted Service 
School. 

Held^ that the freight charges should be regarded as a part of the 
cost of procuring the material, and so payable from the appropria- 
tion covering the purchase, and not from the appropriation for the 
transportation of the Army and its supplies ; but that it would have 
been otherwise if the yjroperty had been purchased and delivered for 
general uses of the Army and afterwards transported as military 
stores to the place where needed. See Opinion July 21, 1905 (Dig. 
Op., J. A. G., 1912, p. 44). 

(5-213, J. A. G., May 6, 1914.) 



DECISIONS OF THE COMPTEOLLER OF THE TREASURY. 

(Digests prepared in the Office of the Judge Advocate General.) 

DAIVCAGES: Liquidated; measure of damages after supplemental contract. 

A contract was entered into to furnish and deliver at the place of 
manufacture certain generator sets, converters, transformers, and a 
A'oltage regulator at prices set opposite each item. The contract pro- 
vided that each completed article before acceptance should be sub- 
mitted at the factory to a test to show its compliance with the specifi- 
cations and capability of performing the work for which it was 
intended. The contractor was obligated to make " complete delivery 
of all items covered by his contract * * * within 150 days after 
notification " of the approval of his contract by the Chief of Engi- 
neers. It was recited that time should be considered " as an essential 
feature of this contract," and it was agreed that as the amount of 
damages for delay beyond the time limit, exclusive of expenses of 
inspection and superintendence, was " difficult, if not impossible, of 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 385 

definite ascertainment and proof," the amount of such damages should 
be liquidated and agreed as $25 for each day's delay beyond said 
time limit. 

Some time after the dat€ fixed for the completion of deliveries a 
certain part of the machinery was submitted for, but failed to meet, 
the test required by the specifications. The defects were waived in 
writing in the interests of the Government and in accordance with the 
contract, and the machinery was accepted. A supplemental contract 
was then made providing for the shipment of the machinery so ac- 
cepted and for payment therefor at contract rates less 10 per cent 
retained and liquidated damages to the date of the supplemental 
contract. Thereafter complete delivery was made, and it was pro- 
posed, on final settlement, to pay the 10 per cent retained without 
further deduction for liquidated damages. 

Held^ that the agreed measure of damages for delay in delivery 
contemplated damages for the whole lot of the machinery, and that 
the contract fixed no measure of damages upon any other basis or 
for any other kind of delivery than the delivery of all the machin- 
ery ; that the amount specified for liquidated damages could not rep- 
resent damages resulting from a delay in delivery of a part of the 
machinery unless all the machinery was part of one unit and incapa- 
ble of separate use ; that inasmuch as all but a small part of the ma- 
chinery was delivered at the date of the supplemental contract, the 
measure of damages so fixed could have no application to delay after 
that date; and that when any of the machinery was delivered, ac- 
cepted and used by the Government, the measure of damages, figured 
on the basis of a delay in delivery of the whole lot, had no applica- 
tion to delays in the delivery of the remaining items, as to which 
items the contract fixed no measure of damages, liquidated or other- 
Avise. Held^ therefore, that the contractor be paid without deduction 
for liquidated damages after the supplemental contract, but retain- 
ing the estimated amount of actual damages. 

(Comp. Geo. E. Downey, May 5, 1914.) 



HEAT AND LIGHT: For quarters occupied by officers and a civilian; 
division of benefits. 

Two officers of the Army were on duty at Kansas City, Mo., 
under competent orders entitling them to commutation of quarters. 
They occupied a residence containing seven rooms with its own indi- 
vidual heating plant, and the gas and electric current consumed for 
light were registerecl by separate meters. A civilian shared in the 
occupancy of a part of the quarters, paying a part of the living 
expenses and receiving equal benefits from the electric light furnished 
for the house. A bill was presented by a local company for electric- 
light current furnished for the entire building. 

Held^ that there was no authority for conferring benefits upon 
civilians through payments authorized by the Government for the 
benefit of Army officers; that the voucher, being an entirety cover- 
ing light furnished for all the rooms, could not be paid without the 

93668°— 17 25 



386 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

certainty of paying for some service for the benefit of a civilian, 
and, as the latter benefit could not be separated, payment of the 
voucher as presented was not authorized; but that if a separate 
voucher were presented for such service for rooms occupied exclu- 
sively by the officers, payment therefor might properly be made. 
(Comp. Geo. E. Downey, May 8, 1914.) 



QUARTERS: On Army transport; commutation; change of orders nunc pro 
tunc. 

An officer was, by competent orders, relieved from assignment 
to his company, placed on the unassigned list, and directed to " pro- 
ceed to Galveston, Tex., for duty on the transport indicated " in his 
orders. After having entered upon the duty in pursuance of these 
orders the officer requested that the same be amended so that he would 
be allowed commutation of quarters and light and heat, and said 
orders were accordingly amended by the War Department so as to 
show that he was relieved from his company and placed on the 
unassigned list, and further made to read as follows : 

" Will proceed to Galveston, Tex., take station at that place, and 
report in person to the depot quartermaster in charge of the Army 
transport service at that place for assignment to duty." 

It did not appear that the. amended order made any change in the 
duty status of the officer, and when the amendment was made he had 
already proceeded to Galveston and taken station on the transport to 
which he had been assigned by the prior order. 

Held, that the orders could not change the officer's status so as to 
affect his pay and allowances simply by declaring the nature of the 
service, but that the facts constituting the service were controlling, 
and the conditions could not by orders be made otherwise than what 
they were in fact ; that the transport remained in the harbor at Gal- 
veston, or the further fact that his family was not permitted to 
occupy quarters with him on board, was not material ; and that the 
claim for commutation should be disallowed. 20 Comp. Dec, 264. 

(Comp. Geo. E. Dj3wney, May 11, 1914.) 



RAILROADS: Government-aided; land-grant deduction from extra fares on 
special trains. 

An officer of the Army travelled over land-grant railroads from 
Seattle, Wash., to San Francisco, Cal., on a special train for which 
an extra charge of $5 was made. The Auditor for the War Depart- 
ment, in making settlement, deducted from this extra charge on 
account of land grant. 

Held, that the transportation to be furnished to the United States 
under the terms of the act making the land grant was not limited 
to service on any particular train, and that the extra fare for trans- 
portation upon ithe train by which the officer traveled was a part of 
the regular fare or charge for transportation and subject to the land- 
grant deduction. 

(Comp. Geo. E. Downey, May 21, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 387 

TAXATION: Of Government agencies; fee for inspecting mount of an 
officer transported by the Government. 

A horse belonging to a retired Army officer was in transit at Gov- 
ernment expense from Fort Laredo, Tex., to Mobile, Ala., the officer's 
home. At New Orleans, La., the horse was inspected by a State 
official and a fee of $5 charged therefor, which the railroad company 
furnishing the transportation paid. The inspection was considered 
necessary under State laws, because the animal was not accompanied 
by a proper health certificate. The horse was the private mount of 
the officer, who was proceeding home under orders after his retire- 
ment. On claim for reimbursement of the amount paid as inspec- 
tion fee — 

Held, that the horse was to all intents and purposes Government 
property for transportation ; that it would not be reasonable or proper 
that any State official should interfere with the movements of the 
Army by requiring an inspection of animals shipped by the Govern- 
ment through its territory ; that the inspection fee, if a proper charge 
at all, was a charge against the United States; and that the right of 
the State to levy such a charge could not be recognized. 2 Comp. 
Dec, 375. 

(Comp. Geo. E. Downey, May 8, 1914.) 



TEIiiEGRAPH SEHVICB: Charges for; night and lettergram rates. 

The Postal Telegraph-Cable Co. presented a voucher representing 
the difference between the night lettergram rate and the rate for night 
messages on two telegrams sent from points in the United States to 
the United States Immigration Service at Vancouver, British Colum- 
bia, and Montreal, Canada, respectively. These telegrams were 
marked by the sending officers as " night lettergrams," for which form 
of message the charge was cheaper when the messages approached 50 
words or more than the ordinary night-message rate, but owing to the 
small number of words in these messages the night rate would have 
been less than the lettergram rate. 

Held, that the mistake of the sending officers in wrongly designat- 
ing the type of message did not change the character of the service 
actually rendered and did not entitle the sending company to charge 
an excessive rate for the messages as sent nor to charge an amount in 
excess of the rate for night messages; that the mistake in designation 
did not affect the charges of the connecting carrier, the Canadian 
Telegraph Co., as the rates of that company were alike for night mes- 
sages and lettergrams ; and that the sole result of the mistake was to 
cause charges to be erroneously entered on the books, for which mis- 
take the transmitting company was as much responsible as the sending 
officers. 

(Comp. Geo. E. Downey, Apr. 22, 1914.) 



TRANSPORTATION: Hire of automobile for officer traveling on a mileage 

status. 

A recruiting officer of the Army was directed to travel under or- 
ders entitling him to mileage from Mem(phis.,Tenn., to Pittsburg Land- 
ing, Tenn. A portion of the journey was made by rail, but no such 



388 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

accommodation beting available for the remainder of the journey he 
hired an automobile for the purpose. 

The mileage law of January. 12, 1906 (34 Stat., 246), in force at the 
time, provided that officers of the Army traveling under competent 
orders without troops should be paid 7 cents per mile, and no more, 
but that they might apply to the Quartermaster Department for a 
transportation request for the journey, and if the same were fur- 
nished it should be charged against their mileage accounts at the rate 
of 3 cents per mile for the transportation furnished. The Army ap- 
propriation act of March 2, 1913 (37 Stat., 716), under the head of 
" Transportation of the Army and its supplies," contained the fol- 
lowing provision : 

" For the purchase, hire, operation, maintenance, and repair of 
such harness, wagons, carts, drays, and other vehicles as are required 
for the transportation of troops and supplies, and for official, mili- 
tary, and garrison purposes;" 

Ileld^ that the mileage law was not repealed by the above appro- 
priation act, that said law fixed the full measure of allowance to 
officers traveling on a mileage status, and that the officer could not re- 
fuse mileage and demand reimbursement for the hire of special means 
of transportation. 17 Comp. Dec, 204. Whether the Quartermaster 
Department could furnish an officer special means of transportation 
and pay for the same out of the appropriation for the transportation 
of the Army and its supplies, charging him 3 cents a mile for the dis- 
tance, was not involved in the submission, and was not decided. 

(Compt. Geo. E. Downey, Dec. 16, 1913.) 



DECISIONS OF THE COURTS. 

(Digests prepared in the office of the Judge Advocate General.) 

CONTRACTS: Damages occasioned by misstatement in specifications; war- 
ranty. 

A contract for the repair of a dam called for the excavation of 
material immediately above it. The specifications attached to the 
contract stated that the dam was " backed up for about 50 feet with 
broken stone, sawdust, and sediment to a height within 2 or 3 feet of 
the crest," and that bidders were expected to visit the locality of the 
work, make their own estimates of the facilities and difficulties at- 
tending the execution of the proposed contract and obtain informa- 
tion necessary to make intelligent proposals. As the work proceeded 
it developed that the space above the dam was occupied, not as stated 
in the specifications, but partly by soft slushy sediment and partly 
by cribwork consisting of sound logs filled with stones. Suit was 
brought for damages suffered by the contractors which would not 
have occurred had the dam been backed with the material stated in 
the specifications. 

Tleld^ that the positive statement in the specifications regarding 
the character of material back of the dam must be taken as true and 
binding upon the Government, which must sustain the loss resulting 
from the mistaken representation rather than the contractors, wdio 
had a right to rely upon the representation in the specifications w^ith- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 389 

out an investigation to prove its falsity, and that judgment should 
be entered for damages incurred because of the difference in char- 
acter of material found back of the dam from that described in the 
specifications. Reversing the same case in 47 Court of Claims, 236 
(W. D. Bui. No. 12, 1912, p. 18). 

{Hollerhach oD May v. United /States, U. S. Supreme Court, Apr. 6, 
1914.) 

COITRTS-MABTIAL: Jurisdiction of civil courts; correction of errors. 

A petty officer of the Navy was tried and convicted by a naval 
court-martial on charges of scandalous conduct tending to the de- 
struction of good morals, and was sentenced to three years' imprison- 
ment to be followed by dishonorable discharge with forfeiture of 
pay. The sentence was duly approved by the Secretary of the Navy. 
A petition for a. writ of habeas corpus was presented alleging, as 
the only ground, that the judge advocate of the court-martial was 
allowed to be present for a short time during a closed session of the 
court, contrary to section 2 of the act of July 27, 1892 (27 Stat., 277). 

Held, that civil courts are in no sense appellate tribunals for the 
revision of the procedure of courts-martial, and will not interfere 
with the judgment of such a court if it appears that it had juris- 
diction of the person and of the subject matter before it; and that 
errors of procedure in military records can be corrected only by the 
proper military authorities. Held further, that the statute, the vio- 
lation of which was complained of, related to procedure and not to 
jurisdiction, and that its nonobservance was a matter for revision 
by military authority and not for revision by the civil courts. The 
writ was, therefore, denied. 

{Ex-parte Tucker, U. S. District Court, Jan. 21, 1913, 212 Fed. 
Rep., 569.) 

MILITIA: Transportation of the organized, to and from joint encampment; 
land-grant deduction for transportation of troops of the United States 
Army. 

A land-grant-aided railroad transported, on Government request, 
members of the organized militia of the States of Alabama and Mis- 
sissippi from points in said respective States to and from Macon, 
Ga., for the purpose of their participating in the joint maneuver 
encampment with a portion of the Regular Army, pursuant to sec- 
tion 15 of the act of January 21, 1903, as amended by section 9 of 
the act of May 27, 1908 (35 Stat., 402). The Auditor allowed the 
claim for transportation service at the usual rates, but deducted for 
land grant on the theory that the said militia were troops of the 
United States. The railroad company sued for the amount thus 
withheld. 

Section 15 of the said act of January 21, 1903, as amended, pro- 
vided for the participation of the organized militia of any state at 
the request of the governor thereof in the encampment maneuvers 
and field instruction of any part of the Regular Army, and provided 
also for their pay, subsistence, and transportation. It further pro- 
vided that the command of the post or camp should remain in the 
regular commander of the post, Avithout regard to the rank of the 
militia officers temporarily encamped thereat. 



390 DIGEST OF OPINIONS OF THE JUIKJE ADVOCATE GENERAL. 

Ileld^ that the organized militia of the several states do not become 
troops of the United States in the meaning of the land-grant acts 
until called into the service of the United States pursuant to the 
Constitution; that the President did not call forth the said militia 
for the encampment mentioned, and he was not their commander in 
chief while they were there ; and that, not being troops of the United 
States, the railroad company was entitled to full fares for their 
transportation without land-grant deduction. 

(Alabama, etc., R. R. Co. v. U. S., Ct. of Cls., May 18, 1914, 
No. 31872.) 

PARDON: Before conviction; effect of refusal to testify after pardon. 

The city editor and a reporter of a New York newspaper refused 
to answer questions before a grand jury concerning the sources of 
their information which were made the bases of certain articles 
published in said newspaper regarding customs frauds, on the ground 
that the disclosure would tend to incriminate them. Later the Presi- 
dent issued full pardons to both of them, covering any possible crime 
which might be connected with said matter. They refused to accept 
this pardon and persisted in their refusal to answer. The grand 
jury thereupon presented them for contempt. 

Held, that the President might pardon anyone who had never been 
charged with or convicted of a crime, and the person pardoned would 
be thereby deprived of the right to claim the privilege that his 
testimony regarding such crime might incriminate him, without 
reference to whether he accepted the pardon or not. Held further, 
that the respondents in refusing to answer the questions concerning 
the sources of their information after such pardon, were guilty of 
contempt, and they were fined accordingly. 

{U. S. V. Burdich, et al., U. S. Dist. Ct., 211 Fed., 492.) 



PAY OF THE ARMY: Increase for service outside the United States and 
contiguous territories; service in Porto Rico. 

The act of June 30, 1902 (32 Stat., 512), provided— 

" That hereafter the pay proper of all commissioned officers and 
enlisted men serving beyond the limits of the States comprising the 
Union and the Territories of the United States contiguous thereto 
shall be increased ten per centum for officers and twenty per centum 
for enlisted men over and above the rates of pay proper as fixed by 
law for time of peace, and the time of such service shall be counted 
from the date of departure from said States to the date of return 
thereto." 

The act of June 12, 1906 (34 Stat., 247), appropriated for said 
increase for officers for the fiscal year 1907 but excepted Porto Rico 
and Hawaii. The act of March 2, 1907 (34 Stat., 1164), appropriat- 
ing for the fiscal year 1908, contained a similar appropriation and 
exception. 

The act of May 11, 1908 (35 Stat., 110), provided— 

" That increase of pay for service beyond the limits of the States 
comprising the Union, and the Territories of the United States con- 
tiguous thereto, shall be as now provided by law " — 
and proceeded to appropriate (p. 114) : 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 391 

" For additional ten per centum increase on pay of officers on 
foreign service." 

An officer of the Marine Corps sailed from New York June 27, 
1908, under orders, for duty in Porto Rico with station at San Juan, 
and. served there until November 3, 1909, when he was detached and 
ordered back to the United States, arriving there four days later. 
The pay of the officers of the Marine Corps is fixed by section 1612, 
Revised Statutes, at the same as officers of like grade in the Infantry 
of the Army. This officer sued in the Court of Claims for $209.78, 
being 10 per cent of his regular pay, for service in Porto Rico during 
the period in question. 

Held^ that the provision in the act of June 12, 1906, appropriating 
for the Army for the fiscal year 1907, and in the act making similar 
appropriations for the fiscal year following, excepting Porto Rico 
and Hawaii from the appropriation for 10 per cent increase of pay 
for officers serving therein, was temporary legislation, was not in- 
tended to affect permanently the act of June 30, 1902, and did nothing 
more than to suspend temporarily said act as to Porto Rico and 
Hawaii; and that the plaintiff was entitled to recover the increase 

{U. S. V. Vulte, U. S. Supt. Ct., May 4, 1914, 233 U. S., 509.) " 



BULLETIN 33. 

Bulletin 1 WAR DEPARTMENT, 

No. 33. J Washington, July 28, WlJi. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of June, 1914, and of certain decisions of 
the Comptroller of the Treasury, is published for the information 
of the service in general. 
[2094269 H— A. G. O.] 

By order or the Secretary or War : 

W. W. WOTHERSPOON, 
Major General, Chief of Staff. 
Official : 

GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ABSENCE: Of officers and enlisted men of the Army due to misconduct; 
stoppage of pay; United States Military Academy detachments. 

The Army appropriation act of April 27, 1914 (Pub. No. 91, 63d 
Cong., p. 4) , provided : 

" That hereafter no officer or enlisted man in active service who 
shall be absent from duty on account of disease resulting from his 
own intemperate use of drugs or alcoholic liquors or other miscon- 
duct shall receive pay for the period of such absence, the time so 
absent and the cause thereof to be ascertained under such procedure 
and regulations as may be prescribed by the Secretary of War." 

Held, that said legislation was clearly applicable to all officers and 
enlisted men of the Army in active service, and therefore Avas appli- 
cable to members of the United States Military Academy detachment 
at West Point, New York. 

(72-210, J. A. G., June 25, 1914.) 



APPROPRIATIONS: Specific and general; Engineer School at Washington 
Barracks, D. C. 

The quartermaster at Washington Barracks. D. C, had expended 
money from appropriations of the Quartermaster Corps for repairs 
on account of the Engineer School buildings and for fuel and light 
on account of such buildings and plant. The greater portion of these 
expenditures was for heating the school building, for operating the 
school power house, and for the engineer steamer Pontonier, which 
had been principally used in transporting troops and supplies. The 
392 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 393 

appropriation for the Engineer School foi' the fiscal year concerned 
in the act of Mar. 2, 1913 "(37 Stat., 719), provided for the— 

" E(jiupment and maintenance of the Engineer School at Washing- 
ton Barracks, District of Columbia, * * * incidental expenses of 
the school, including fuel, lights, chemicals, stationery, hardware, 
machinery, and boats, * * * for repairs of and materials to repair 
public buildings and machinery." 

Held, that said appropriation was more specific for the purposes 
indicated than the general appropriations of the Quartermaster 
Corps for similar purposes, and must be used to the exclusion of the 
latter. 

(5-262, J. A. G., June 10, 1914.) * 



DESERTERS: Rewards for, when delivered to the military authorities, 
but not accepted. 

Two deserters were arrested by the sheriff of Pike County, Ark., 
and turned over to the military authorities at Fort Logan H. Roots 
in said state. The quartermaster sergeant in charge of the post at 
the time refused to receive the prisoners, as he had no means of 
guarding or feeding them, and advised the sheriff to report to the 
recruiting officer at Little Rock, Ark., and to telegraph to the com- 
manding general. Eastern Department, for instructions. He tele- 
graphed as advised, but before receiving a reply released the pris- 
oners and returned to his home. Circulars had been issued offering 
the usual reward of $50 for the arrest and delivery of either of the 
deserters in question at a military post. 

Held, that the sheriff in arresting and delivering the prisoners to 
the authorities at the military post, had complied with the terms 
of the offer and was entitled to the reward, notwithstanding that the 
prisoners were not accepted by such authorities and were afterwards 
released. 

(26-200, J. A. G., June 22, 1914.) 



DETACHED SERVICE: Status of officer, when statute relating to, is in- 
operative. 

The act of August 24, 1912 (37 Stat., 571), provided: 

" That hereafter in time of peace whenever any officer holding a 
permanent commission in the line of the Army with rank below that 
of major shall not have been actually present for duty for at least two 
of the last preceding six years with a troop, battery, or company of 
that branch of the Army in which he shall hold said commission, such 
officer shall not be detached nor permitted to remain detached from 
such troop, battery, or company for duty of any kind." 

Held, that this statute was applicable only in time of peace, but 
that when once operative it applied to the last preceding six years 
and required that an officer to be eligible for detached service should 
have been present for duty with his organization as prescribed for 
at least two of such six-year period, regardless of whether any part 
of that period was in time other than peace wdien the law itself might 
be suspended. 

(6-124, J. A. G., June 9, 1914.) 



394 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

DETACHED SERVICE: Duty as adjutant of a brigade performed by a 
captain or by a field officer not detailed in The Adjutant General's 
Department. 

The army appropriation act of April 27, 1914 (Pub. No. 91, 63d 
Cong., p. 7) , provided : 

" That after September first, nineteen hundred and fourteen, in 
time of peace, whenever any officer holding a permanent commission 
in the line of the Army, with rank of colonel, lieutenant colonel, or 
major, shall not have been actually present for duty for at least two 
years of the last preceding six years with a command composed of 
not less than two troops, batteries, or companies of that branch of 
the Army in which he shall hold said commission, such officer shall 
not be detached nor permitted to remain detached from such com- 
mand for duty of any kind except as hereinafter specifically pro- 
vided : * * * Provided further^ That whenever the service record 
of any field officer is to be ascertained for the purposes of this Act, 
all duty actually performed by him during the last preceding six 
years, in a grade below that of major, in connection with any statu- 
tory organization of that branch of the Army in which he shall 
hold a permanent commission, or as a staff officer of any coast- 
defense or coast-artillery district, shall be credited to him as actual 
presence for duty with a command composed as hereinbefore pre- 
scribed * * *," 

Held., in response to specific inquiries submitted by the Chief of 
Staff, that when a field officer of the line " not detailed in The Adju- 
tant General's Department" (so specified in the inquiry) performs 
the regular and normal duties of brigade adjutant, he is actually 
present for duty with that brigade and is therefore actually present 
for duty with a command composed of not less than two troops, 
batteries, or companies of that branch of the Army in which the 
officer holds his commission, provided, of course, the brigade be a 
brigade of his branch of the service. Held further^ that since a 
brigade is a " statutory organization " and duty as a brigade adju- 
tant is duty " in connection with " a statutory organization, it follows 
that duty actually performed by a captain as adjutant of a brigade 
of his branch of the service within the period fixed by the legislation 
must, in determining his eligibility for detached service as a field 
officer, be credited to him as actual presence for duty with a command 
composed as prescribed by law. 

(6-124, J. A. G., June 18. 1914.) 



DETACHED SERVICE : Exercising command wben not present with com- 
pany; two-company commands. 

A major was in command of a two-company post, when one of the 
companies left the post for several days for the purpose of engaging 
in target practice, the officer remaining at the post. Opinion w^as 
desired as to whether it still constituted a two-company command, 
and, also, as to whether it would cease to be such if one company 
should leave for duty in another department for an indefinite period. 

Ileld^ that the company engaged in target practice was still under 
the officer's command, did not become integrated with another com- 
mand, and the officer's command did not cease to be a two-company 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 395 

command by reason of such absence. Held further^ that the com- 
pany which might leave for duty in another department for an in- 
definite period could not be regarded as still constituting a part of 
the command of the officer, and when the detached-service legisla- 
tion was applicable the period when this officer commanded only one 
company would have to be regarded as duty other than duty with 
" a command composed of not less than two companies." 
(6-124, J. A. G., June 18, 1914.) 



EIGHT-HOITE, LAWS: Contract for dredging; work on retaining' bulk- 
heads. 

A contract provided for excavating in Flushing Bay, N. Y., and 
for depositing the material excavated behind bulkheads constructed 
in shallow water or at the water's edge, all embankments or bulk- 
heads needed for confining or grading the material with necessary 
waste weirs to be provided by the contractor without assistance by 
the United States. The men employed in constructing the sod re- 
taining walls of the bulkheads were not directly operating the dredge 
or regular excavating machinery or tools. The work was done prior 
to the commencement of dredging operations, no supervision was ex- 
ercised over said work, and no inspector was deemed necessary until 
the dredge was ready to begin excavation. 

Held^ that such labor was not performed upon a public work of 
the United States and was not therefore covered by the act of Aug- 
ust 1, 1892 (27 Stat., 340) ; but that, as the contractor was required 
to furnish his own disposal area, the work of constructing the bulk- 
heads to retain the dredged material as required by the contract was, 
under the stipulations of the contract, work involved in the contract, 
and whether the same was done by the contractor or by a subcon- 
tractor, it fell within the provisions of the act of June 19, 1912 (37 
Stat., 137), regarding the execution of public contracts involving the 
employment of laborers and mechanics. 

(76-720, J. A. G., June 8, 1914.) 



ENLISTED MEN: Of the Army Reserve; employment of, in the civil 
service. 

The act of August 24, 1912 (37 Stat., 590), authorized the estab- 
lishment of an Army Reserve consisting of enlisted men with a 
military status closely assimilated, in respect to nonliability for ac- 
tive service in time of peace, to that of retired noncommissioned offi- 
cers and enlisted men created by the act of February 14, 1885 (23 
Stat., 305). 

Held^ that the status of the Army Reserve, being analogous to that 
of retired noncommissioned officers and enlisted men, which latter 
might be employed in the civil service of the Government, enlisted 
men of the Army Reserve could likewise be so employed, both in the 
classified and unclassified civil service, under such regulations, exami- 
nations, and tests as might be prescribed by the Civil- Service Com- 
mission. 

(16-110, J. A. G., June 20, 1914.) 



396 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ENLISTED MEN: Civil employment while on furlough. 

An enlisted man requested a three months' furlough in order that 
he might accept a civil service position in the Post Office Department 
with a view of trying said position before purchasing his discharge. 

Held^ that an enlisted man on furlough might accept civil employ- 
ment, and that there was no legal objection to the granting of the 
furlough as requested to enable the soldier to accept the position in 
the Post Office Department during such furlough. Dig. Op. J. A. G. 
1^12, p. 13 d. (2) ; id. p. 84 a (1). 

(2-135, J. A. G., June 30, 1914.) 



EURLOTJGHS: Returning' from; charging cost of transportation to soldier. 

A soldier was granted a 90-day furlough for the purpose of ena- 
bling him to visit his home in St. Paul, Minn., and after the expira- 
tion of 48 days thereof he was ordered to rejoin his company because 
of orders directing said company to proceed to Vera Cruz, Mexico. 
To enable him to rejoin his company, he was furnished transporta- 
tion by the depot quartermaster to Galveston, Tex., at a cost of 
$45.85. 

Held., that a soldier on furlough must, at the expiration thereof, 
return to his post or station at his own expense, and the obligation 
is the same whether the length of furlough is curtailed or not, and 
that the soldier should be charged with the cost of the return trans- 
portation provided for him, not to exceed the actual cost to the 
Government, considering the amount of land-grant deduction, if 
any, to which the United States was entitled. 

(94-240, J. A. G., June 4, 1914.) 



MARTIAL LAW: Responsibility for destruction of property during. 

A private corporation in Colorado made claim for damages to its 
property caused, on May 27, 1914, by a fire alleged to have been of 
incendiary origin. It was claimed that the Federal authorities were 
in control of the situation at the time and had " assumed protec- 
tion of all mining property." It did not appear that there was any 
negligence on the part of the troops in guarding the property in 
question. 

Held., that where the Government acts in the preservation of order, 
it assumes no obligation to insure property which it attempts to 
protect, nor is there any contractual agreement between the property 
owners and the Government that the latter will be responsible for 
want of care on the part of the troops in protecting such property. 
Held further^ that the Government is not responsible for damages 
resulting from the negligence or tortious acts of its officers or agents, 
and that it was not responsible for the damages sustained in said case. 

(18-451, J. A. G., June 18, 1914.) 



MOUNTS: Transportation of, from place of purchase to officer's station; 
computation of cost. 

A first lieutenant, Field Artillery, in August, 1913, changed station 
from Manila, P. I., to Schofield Barracks, Hawaii. He had never 
had a horse shipped for him to his station at Government expense. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 397 

While in the Philippines he purchased a mount but was compelled 
to sell it on changing station to Schofield Barracks because of an 
order of the Department of Agriculture prohibiting the landing of 
live stock or animals of any kind from the Philippine Islands at 
any port of the Hawaiian Islands. He desired to have a mount 
purchased by him in the United States shipped to him at Schofield 
Barracks at Government expense, pursuant to the provisions of the 
act of March 23, 1910 (36 Stat. 256), allowing the shipment at Gov- 
ernment expense of owned animals of an officer, not exceeding the 
number authorized by law, from point of purchase to his station 
" when he would have been entitled to and did not have his author- 
ized number of owned horses shipped upon his last change of station, 
and when the cost of shipment does not exceed that from his old to 
his new station." 

Eeld^ that the officer was entitled to have his mount shipped to 
him from the United States to his then present station at a cost not 
to exceed what it would have cost the Government to have shipped 
a mount for the officer from his station in the Philippine Islands to 
Schofield Barracks, and that as in such case the shipment would 
have been effected by Government transport the cost of shipment 
should not exceed the cost of shipping an animal on a transport, but 
that in computing said amount the cost of subsistence and care of 
the animal on a transport would have to be taken into consideration. 

(94-022, J. A. G., June 3, 1914.) 



NAVIGABLE WATERS: Obstructions to streams navigable in different 
States; disconnected navigable portions. 

Section 9 of the act of March 3, 1899 (30 Stat., 1151), provided as 
follows : 

" That it shall not be lawful to construct or commence the con- 
struction of any bridge, dam, dike, or causeway over or in any port, 
roadstead, haven, harbor, canal, navigable river, or other navigable 
water of the United States until the consent of Congress to the build- 
ing of such structures shall have been obtained and until the plans 
for the same shall have been submitted to and approved by the Chief 
of Engineers and by the Secretary of War: Provided^ That such 
structures may be built under authority of the legislature of a State 
across rivers and other waterways the navigable portions of which lie 
wholly within the limits of a single State, provided the location and 
plans thereof are submitted to and approved by the Chief of Engi- 
neers and by the Secretary of War before construction is com- 
menced." 

The Susquehanna River contained a navigable portion from its 
mouth to some distance above lying wholly within the State of 
Maryland, and also several disconnected navigable portions lying 
within the State of Pennsylvania, but it may be that there was no 
navigable portion extending from one state ito the other. Applica- 
tion was made to the Chief of Engineers and the Secretary of War 
for the approval of plans for the construction of a dam across that 
portion of the river lying within the State of Maryland, no authority 
for such construction having been granted by Congress. 



398 DIGEST OF OPINIONS OF THE JUIXJE ADVOCATE GENERAL. 

Held^ that the act of March 3, 1899, was not limited in its scope to 
interstate navigation, but operated on agencies and instrumentalities 
of interstate commerce, and its sole object was the preservation and 
l)rotection of the navigability of these instrumentalities {United 
States V. Rio Grande, etc., Co., 174 U. S., 690; St. Anthony's W. P. 
Go. V. Water Convm'rs, 168 U. S., 349; The Montello, 20 Wall, 430) ; 
that the distinction made in the statute was between rivers whose nav- 
igable portions lie entirely within a single state and those whose navi- 
gable portions lie within more than one state, which distinction did 
not rest upon the fact that in the one case there could not be, and in 
the other there might be interstate navigation thereon ; and that the 
Susquehanna River having navigable portions in more than one state 
did not come within the proviso relative to rivers the navigable por- 
tions of which lie wholly within the limits of a single state, although 
there might be no interstate navigation. Held further, that the Sec- 
retary of War and Chief of Engineers were without authority to ap- 
prove the plans for the construction of a dam across the Susquehanna 
River in Maryland until authority had been obtained from Congress. 

(62-020, J. A. G., June 8, 1914.) 



NAVIGABLE WATERS: Rights of fishery and navigation; fishing nets 
as obstructions to navigation. 

Section 10 of the act of March 3, 1899 (30 Stat., 1151), provided as 
follows : 

" That the creation of any obstruction not affirmatively authorized 
by Congress to the navigable capacity of any of the waters of the 
United States is hereby prohibited; * * * and it shall not be 
lawful to excavate or fill, or in any manner to alter or modify the 
course, location, condition, or capacity of any port, roadstead, haven, 
harbor, canal, lake, harbor of refuge, or inclosure within the limits 
of any breakwater, or of the channel of any navigable water of the 
United States, unless the work has been recommended by the Chief 
of Engineers and authorized by the Secretary of War prior to begin- 
ning the same." 

A notice had been issued by authority of the Secretary of War to 
those engaged in fishing in the waters near the mouth of the Columbia 
River, Oreg., calling attention to the foregoing provision and to the 
provisions of section 12 of said act prescribing punishment for viola- 
tions thereof, and advising them that the operation of gill nets for 
taking fish within certain limits was considered as an unreasonable 
obstruction to navigation and prohibited by said law. It was shown 
that gill nets were sometimes half a mile in length and 30 feet or more 
in width, and constituted a menace to navigation from the liability of 
becoming entangled in the propellers of passing vessels or other- 
wise impeding their progress. 

Held, that the right of navigation was superior to the right of 
fishery; that Congress by said act had assumed full jurisdiction over 
the navigable waters of the United States and had paramount author- 
ity over the same; that the act prevented obstructions not only to the 
navigable portions of the waters, but also to the navigable capacity as 
well; that the placing of such nets in the channel of the river consti- 
tuted an obstruction to navigation within the prohibition of the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 399 

statute, which obstruction might be removed or abated; and that 
under the clauses of said section 10 succeeding the general prohibition 
therein, the Chief of Engineers and the Secretary of War might 
authorize the operation of seines which constitute obstructions to the 
navigable capacity of said river, but which, if not authorized, would 
be prohibited by the opening declaration of said section, said charac- 
ter of obstruction coming within the concluding language of said 
section. 

(62-100, J. A. G., June 11, 1914.) 



PURCHASES: Of supplies; advertising for purchase of an aeroplane; lack 
of competition. 

The Chief Signal Officer of the Army desired authority " to hold 
a competition for the development of a suitable military aeroplane 
for service use, purchasing the machine making the highest points 
in the competition" for a certain price, the machine making the 
next highest number of points for a less price, and the machine 
making the next highest number of points for still less price. The 
appropriation for the Signal Service for the fiscal year 1915 author- 
ized the expenditure of not more than $250,000 for the purchase, 
maintenance, operation, and repair of air ships and other aerial 
machines, and placed no restriction upon the Secretary of War as to 
the method of procuring the same. 

Held, that the object not being to procure aeroplanes of standard 
type, but to develop a suitable one for the military service, the case 
was one where it was impracticable to secure competition, and where 
the object could not be attained by advertising; that the statutes 
regarding advertising were inapplicable; and that no legal objection 
existed to the course proposed. 

(5-231. J. A. G., June 11, 1914.) 



QUARTERMASTER CORPS: Recommissioning officers of the constituent 
departments therein. 

Section 3 of the act of August 24, 1912 (37 Stat., 591), provided as 
follows : 

" The Quartermaster's, Subsistence, and Pay Departments of the 
Army are hereby consolidated into and shall hereafter be known as 
the Quartermaster Corps of the Army. The officers of said depart- 
ments shall hereafter be known as officers of said corps and by the 
titles of the rank held by them therein * * *. Xhe officers now 
holding commissions as officers of the said departments shall hereafter 
have the same tenure of commission in the Quartermaster Corps, and 
as officers of said corps shall have rank of the same grades and dates 
as that now held by them, and, for the purpose of filling vacancies 
among them, shall constitute one list, on which they shall be arranged 
according to rank." 

An officer of the consolidated corps held a commission as assistant 
commissary general with rank of colonel. 

Held, that Congress might change the rank and pay of an officer 
without maldng a new appointment necessary {Wood v. United 
States, 107 U. S.^ 414) ; that the statute effected the consolidation 



400 DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENEKAL. 

without the necessity for the reappointment or recommissioning the 
officers of the respective departments as officers of the consolidated 
corps; and that there was no necessity for a new commission. 
(6-224, J. A. G., June 13, 1914.) 



SALES OF PROPERTY: By the Government to a civilian; sale of fuel. 

The postmistress at Fort Meyer, Va., applied to the quartermaster 
at said post for the privilege of purchasing fuel for her personal use. 
Paragraph 1055, Army Regulations, 1913, provided for the sale of 
quartermaster stores to civilians employed with the Army " at remote 
posts or stations where it is impossible to procure at reasonable rates " 
the articles supplied. 

Held^ that as the fuel was intended for the personal use of the 
applicant, the sale could not be regarded as a sale from one depart- 
ment of the Government to another, and as the applicant was not 
a civilian employed with the Army at a remote station or post, the 
sale to her of fuel by the Quartermaster Corps would be unauthorized. 

(80-132, J. A. G., June 3, 1914.) 



TRANSPORTATION: Redemption of the unused portion of a ticket issued 
on a Government transportation request. 

A discharged general prisoner applied to a railway company for a 
refund of the unused portion of a ticket given in exchange for a 
transportation request issued to him on his discharge, in accordance 
with the act of March 2, 1913 (37 Stat., 715). Transportation was 
furnished from New York to Chicago, 111., but he had used the 
ticket only as far as Buffalo, N. Y. 

Held^ that the Government could claim no right to refund in 
respect of the unused portion of the ticket furnished the prisoner, 
and that the matter was one for arrangement between the railroad 
company and the holder of the unused portion of the ticket. 94-322, 
J. A. G., March 10, 1914. 

(94-330, J. A. G., June 1, 1914.) 

Similarly held with respect to the redemption of the unused por- 
tion of a ticket obtained on a transportation request issued to a re- 
jected applicant for enlistment for his return to the station where 
he was accepted for enlistment. 

(Id., June 17, 1914.) 



TRAVEL ALLOWANCES: Of soldiers on discharge; transportation to 
point within the continental limits of the United States. 

A soldier enlisted in the Philippine Islands and was discharged 
at Fort McDowell, Cal.,.and decision was desired as to whether he 
could be furnished with transportation in kind and subsistence under 
the act of August 24, 1912 (37 Stat., 576), to Nome. Alaska. Said 
act provided that — 

" M^hen an enlisted man is discharged from the service, except by 
way of punishment for an offense^ he shall be entitled to transporta- 
tion in kind and subsistence from the place of his discharge to the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 401 

place of his enlistment, or to such other place within the continental 
limits of the United States as he may select, to which the distance 
is no greater than from the place of discharge to place of enlist- 
ment * * *." 

Ueld^ that the term " United States " is susceptible of a restricted 
or an enlarged meaning, depending on the context, and may be used 
as limited to the states comprising the Union or to include the organ- 
ized states and the territories or dependencies of the same; that in 
the statute under consideration said term is qualified by the term 
" continental limits," which indicates that it is used in the larger 
sense; and that Alaska may be regarded as within the continental 
limits of the United States within the meaning of this statute. 

(94-332, J. A. G., June 3, 1914.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in tlie office of tlie Judge Advocate General.) 

APPROPRIATIONS: Charging to a contractor cost of material furnished 
by the United States. 

A contract provided for the construction for the United States of 
two storehouses at Fort Mason, Cal., the contractor to furnish all 
crushed rock required on the work. The Government, however, re- 
served the right of furnishing crushed rock used on the work at the 
rate of $1.25 per cubic yard of rock so furnished, the amount to be 
deducted from the contract price. 

Held^ that the furnishing by the Government of crushed rock in 
pursuance of the contract was tantamount to a payment on the con- 
tract of $1.25 for each cubic yard of rock furnished, and that the cost 
of labor and materials necessary to furnish the rock was payable from 
the appropriation for the project or work itself, notwithstanding 
that a considerable portion of the rock was furnished in a fiscal year 
other than that of the appropriation for the work under the contract. 

(Comp. Geo. E. Downey, June 4, 1914.) 



BARRACKS AND QUARTERS: Limitation on cost of construction of; use 
of appropriations. 

Section 1136, Revised Statutes, provided that — 

" Permanent barracks or quarters and buildings and structures of a 
permanent nature shall not be constructed unless detailed estimates 
shall have been previously submitted to Congress and approved by a 
special appropriation for the same except when constructed by the 
troops; and no such structures, the cost of wdiich shall exceed twenty 
thousand dollars, shall be erected unless by special authority of 
Congress." 

Appropriation was made by the act of April 27, 1914 (Pub. No. 91, 
p. 18), of a lump sum for the construction and repair of hospitals at 
military posts already established, and of general hospitals, and for 
additions needed to meet the requirements of increased garrisons. 

93668°— 17 26 



402 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

It was proposed to expend from this appropriation $20,000 for the 
completion of each of two hospitals, and the same amount for the 
erection of an addition to another. The sum of $45,000 had been 
appropriated for the erection of one of the hospitals that was to be 
completed, and the amount had practically all been expended. 

Held, in the case of the hospital for which the appropriation had 
been made, that no greater sum than the amount appropriated could 
be expended without congressional authority, and that as to the other 
two, the appropriation for the construction and repair of hospitals 
was not available for additions which would carry the cost of 
the buildings above the $20,000 limit without further legislative 
direction. 

(Comp. Geo. E. Downey, June 15, 1914.) 



CONTRACTS: Charging cost of work voluntarily furnished by the Govern- 
ment. 

A contract was entered into for the construction of a levee, with 
provision in the specifications that if in the opinion of the con- 
tracting officer operations under the contract were not being carried 
forward at a rate which would insure the completion of the work 
within the stipulated time, that officer might employ additional 
plant or labor and purchase such material as might be necessary 
to insure the proper completion of the work within the specified 
time, any excess of cost to be charged to the contractors. The work 
was not completed within the time limited, but the contractors were 
permited to proceed with the work under an article in the agreement. 
Later it was feared that threatened floods might destroy the work 
already completed, and without request to the contractors to increase 
their force, and without any action annulling the contract, the Gov- 
ernment hired additi(mal teams to supplement the work. 

Ileld^ that the Government having voluntarily, without contract 
authority, assumed to do certain work, it was entitled to charge the 
contractors no more than the reasonable cost to it of doing the same, 
and that the contractors were entitled to settlement at full contract 
rates for all embankments placed, and to be charged only with the 
actual cost to the Government of the work done by the latter, without 
considering whether or not the contractors made a profit on account 
of such work. 

(Comp. Geo. E. Downey, June 24, 1914.) 



COURTS-MARTIAL: Jurisdiction of; sentence of forfeiture of pay; satisfy- 
ing indebtedness to the Government and to a post exchange. 

A retired sergeant major. United States Army, had been tried by 
court-martial for the larceny of certain funds belonging to the post 
excliange at the post where he was ser^dng, while he was exchange 
steward, lie was sentenced to forfeit $50 per month of his pay for 
the period of one year, and thereafter to suffer a stoppage of a like 
amount jjer month to reimburse the post exchange until the sum of 
$875 should be paid to said post exchange, that sum being the amount 
of his indebtedness on account, of said hircenies. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 403 

Section 4818, Revised Statutes, provided : 

" For the support of the Soldiers' Home the following funds are 
set apart, and are hereby appropriated: All stoppages or fines ad- 
judged against soldiers by sentence of courts-martial, over and above 
any amount that may be due for the reimbursement of Government, 
or of individuals; * * *." 

Held^ that the stoppage of pay to reimbui-se the Government or a 
Government agency on accomit of losses for which officers and en- 
listed men are responsible, is purely an administrative matter with 
which courts-martial have nothing to do; that such part of the sen- 
tence as directed a stoppage of pay to reimburse the post exchange 
was unauthorized, and should be disregarded; and that the sentence 
should stand as though it read only for the forfeiture of $50 per 
month for a period of one year. Held further^ that a post exchange 
is an agency or instrumentality of the Government, and comes within 
the class of individuals mentioned in section 4818, Revised Statutes ; 
that there was no pay against which the forfeiture could run until 
the indebtedness to the post exchange had been satisfied; and that 
when so satisfied the forfeiture or fine would begin to run against 
the soldier's pay and continue for the time specified, the amount as 
collected being appropriated to the Soldiers' Home. 

(Comp. Geo. E. Downey, June 11, 1914.) 



LEASING: Of quarters; form of contract for, by offer and acceptance. 

It was proposed to make agreements in the form of a proposal and 
acceptance for the payment of the rent of quarters hired for occu- 
pancy by officers and enlisted men, also contracts for the transporta- 
tion of troops, impedimenta, etc. 

Section 3744, Revised Statutes, required, among other things, that 
contracts executed under the authority of the Secretary of War 
should be reduced to writing and signed by the contracting parties 
with their names at the end thereof. 

Held^ that it has been uniformly ruled by the courts that an agree- 
ment in the form of a proposal and acceptance was not such a con- 
tract as complied with the statute {St. Louis Hay^ etc., Co. v. United 
States^ 161 U. S., 159; United States v. R. P. Andrews (& Co.., 207 
U. S., 229) ; and that the use of the proposed form of agreement 
was not authorized. Dec. Sept. 11, 1912. 

(Comp. Geo. E. Downey, June 11, 1914.) 



PAY OF ENLISTED MEN: Of the Army; continuous service; reenlistment 
after completed enlistment and subsequent dishonorable discharge. 

A soldier had served continuously as an enlisted man in the Marine 
Corps and in the Army, reenlisting after the termination of each 
period of enlistment by an honorable discharge from April 18, 1895, 
until September 5, 1913, when he was dishonorably discharged by 
sentence of general court-martial, with forfeiture of pay and allow- 
ances and imprisonment for three months. Before the expiration 
of his term of imprisonment he received permission to reenlist and 



404 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

did SO reenlist within three months after his dishonorable discharge. 
The act of May 11, 1908 (35 Stat., 109). provided— 

" That hereafter any soldier honorably discharged at the termina- 
tion of an enlistment period who reenlists within three months there- 
after, shall be entitled to continuous service pay as herein provided, 
which shall be in addition to the initial pay provided for in this act 
* * * : Provided^ That hereafter any soldier honorably discharged 
at the termination of his first or any succeeding enlistment period 
who reenlists after the expiration of three months shall be regarded 
as in his second enlistment; * * *." 

Held^ that enlistments closed by honorable discharge become fixed 
and determined when the honorable discharge is given, and must 
remain so, and that it was not in the power of the court-martial to 
change them; that this soldier having been honorably discharged at 
the termination of a completed enlistment period sometime prior 
to. his dishonorable discharge, the case fell within the provision of 
the statute relative to reenlistment after three months after an hon- 
orable discharge at the termination of an enlistment period; and 
that he should be carried as in his second enlistment. The decision 
in 14 Comp. Dec. 367 and 16 id. 871 were modified in accordance 
with the above decision. 

(Comp. Geo. E. Downey, June 3, 1914.) 



PAY OF ENLISTED MEN: Continuous service; application for reenlistment 
within time, but enlistment completed afterwards. 

The act of May 11, 1904 (35 Stat., 109) , provided that— 

" Hereafter any soldier honorably discharged at the teraiination 
of an enlistment period who reenlists within three months thereafter 
shall be entitled to continuous-service pay as herein provided." 

A soldier had served two continuous enlistments, receiving an hon- 
orable discharge from each, the last being dated April 27, 1907. He 
applied for reenlistment before the expiration of three months, but 
on account of delays, apparently for the convenience of the Govern- 
ment, and without his fault, he was not finally reenlisted and sworn 
in until after the expiration of said period of three months. 

lleld.^ that he was entitled to have his reenlistment to take effect 
before the expiration of said three-month period, and was entitled 
to the benefit of his prior service in computing his pay for continuous 
service. Goe v. V. S., 44 Ct. Cls., 419. 

(Comp. Geo. E. Downey, June 16, 1914.) 



PAYMENTS: Eor forage, stabling, and other services for mounts of military 
attaches abroad. 

It had been the practice of officers of the Army on foreign service 
in France to pay for forage, stabling, horseshoeing, and veterinary 
services for their private mounts used in the service, afterwards pro- 
curing public bills to be made out and signed by the persons furnish- 
ing the service. 

Held, that while this practice was contrary to the well-established 
rule that payment could be made only to the person rendering the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 405 

service, and that the claim of persons who voluntarily pay the 
Government's obligations can not be recognized, yet as these sup- 
plies and services were furnished by Frenchmen unfamiliar with 
our language, who did not understand our system of vouchers, and 
who held the officers themselves personally responsible for the service, 
officers incurring necessary and proper expenses for the purposes 
stated might be reimbursed upon vouchers properly executed, accom- 
panied by subvouchers showing that the bills were actually paid by 
them, together with satisfactory certificates as to the necessity 
therefor. 

(Comp. Geo. E. Downey, June 19, 1914.) 



PXJIICHASES: Of envelopes for sale to officers and enlisted men of tlie 
Army. 

The Auditor for the War Department disallowed items aggregating 
$3.64, in the accounts of a quartermaster (the same being payments 
for envelopes purchased for military posts for sale to officers and 
enlisted men), on the ground that the purchases were not in accord- 
ance with the provisions of the act of June 26, 1906 (34 Stat., 476), 
which provided that after December 31, 1906 : 

" * * * the Postmaster General shall contract, for a period not 
exceeding four years, for all envelopes, stamped or otherwise, de- 
signed for sale to the public, or for use by the Post Office Department, 
the Postal Service, and other executive departments, and all Gov- 
ernment bureaus and establishments, and the branches of the service 
coming under their jurisdiction, and may contract for them to be 
plain or with such printed matter as may be prescribed by the 
department making requisition therefor; * * *." 

On appeal, the Comptroller of the Treasury affirmed the action of 
the auditor, and 

Held^ that the above quoted provision prohibited the purchase of 
envelopes by or for any Government department, bureau, or estab- 
lishment, or any branch of the service coming under their jurisdic- 
tion, in any other manner than under contract made by the Post- 
master General, except in case of exigency where the need for the 
envelopes was so urgent as not to permit of the delay necessarily in- 
cident to obtaining them through the Postmaster General. See 20 
Comp. Dec, 34, and decisions therein cited. 

(Comp. Geo. E. Downey, June 4, 1914.) 



TRAVELING EXPENSES: Actual cost of subsistence. 

The urgent deficiency act of April 6, 1914 (Pub. No. 82, 63d Cong., 
p. 7), provided that — 

" On and after July first, nineteen hundred and fourteen, unless 
otherwise expressly provided by law, no officer or employee of the 
United States shall be allowed or paid any sum in excess of expenses 
actually incurred for subsistence while traveling on duty outside 
of the District of Columbia and away from his designated post of 
duty, nor any sum for such expenses actually incurred in excess of 
$5 per day ; nor shall any allowance or reimbursement for subsistence 



406 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

be paid to any officer or employee in any branch of the public service 
of the United States in the District of Columbia unless absent from 
his designated post of duty outside of the District of Columbia, and 
then only for the period of time actually engaged in the discharge 
of official duties." 

Beld^ that said legislation affected only expenses for subsistence; 
that railroad fare, Pullman charges, street care fare and cab hire, as 
well as tips to Pullman porters and cabin and deck stewards, were 
items of transportation, were not chargeable as a part of the cost of 
subsistence, and were not included in the maximum of $5 per day 
allowed for expenses actually incurred for subsistence; and that the 
latter term included expenses of board and lodging and tips at hotels. 

(Comp. Geo. E. Downey, Apr. 22 and 24, 1914.) 



BULLETIN 39. 

BtTLLETiNl WAR DEPARTMENT, 

No. 39. J Washington, August 18, 1914- 

The following digest of opinions of the Judge Advocate General 

of the Army for the month of Julj'^, 1914, and of certain decisions 

of the courts, is published for the information of the service in 

general. 

[2194536, A. G. O.] 

By order of the Secretary op War : 

W. W. WOTHERSPOON, 

Major Gene7'al, Chief of ^taff. 
Official : 

GEO. ANDREWS, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ABSENCE: On account of disease resulting from misconduct, or while in 
confinement; making- good time lost. 

The act of April 27, 1914 (Pub. No. 21, p. 3) , provided : 

" That an enlistment shall not be regarded as complete until the 
soldier shall have made good any time in excess of one day lost by 
unauthorized absences, or on account of disease resulting from his 
own intemperate use of drugs or alcoholic liquors or other miscon- 
duct, or while in confinement awaiting trial or disposition of his case 
if the trial results in conviction, or while in confinement under 
sentence." 

A private soldier of the Quartermaster Corps who had enlisted 
before the passage of said act was absent from active duty on account 
of sickness resulting from his own misconduct from March 9 to 25 
and from April 17 to May 1, 1914, all dates inclusive. He was being 
held beyond his period of enlistment to make good the time so lost. 

Held, that said act had application only to enlistments entered into 
on or subsequent to its date and did not affect prior enlistments, 
except as to unauthorized absences in excess of one day, as to which 
the law only repeated existing legislation (Dig. Op. J. A. G., 1912, 
p. 16, B 9) ; and that the soldier should not be held to service to 
make up time lost through absences due to the causes mentioned 
occurring either before or after the passage of the act. Held fur- 
ther, that the law being permanent legislation took effect from its 
date and not from the beginning of the fiscal year for which appro- 
priations were made therein. 

(2-234, J. A. G., July 15, 1914.) 

407 



408 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

CONTRACTS: Supplemental; covering matter not included in the original 
contract. 

Eecommenclation was made for the execution of a supplemental 
contract for the construction of walks, drains, etc., at an Army post. 
The original contract included a certain amount of paved ditch at a 
cost which the quartermaster deemed too high and also other side- 
walks, but not the one proposed to be constructed by the supple- 
mental contract. 

Held., that supplemental contracts should be made only in cases 
where obstacles or unforeseen conditions arise, or when the Govern- 
ment desires to abandon the whole or a part of its undertaking, and 
should also be made in the interest of the United States; that section 
3709, Revised Statutes, required that all contracts be made after 
advertising; and that, as the walk proposed to be constructed was 
not included in the advertisement for the original contract but w^as 
a new piece of work, it did not come w^ithin the original advertise- 
ment and could not be regarded as an increase provided for in the 
then existing contract. Held therefore., that the substitution of the 
supplemental for the original contract could not be made. 

(76-400, J. A. a, July 27, 1914.) 



COURTS-MARTIAL: Combining separate offenses to make a greater offense. 

A soldier was tried by general court-martial on two separate speci- 
fications, each charging larceny. In neither specification were the 
articles charged to have been stolen of sufficient value to constitute 
the offense of grand larceny under the local law, but the total value 
of all the articles stolen, as set forth in the two specifications, 
amounted to a sufficient sum to make an offense of grand larceny. 
Under the military practice the two offenses were tried together and 
one sentence imposed. 

Held., that the several larcenies by the accused could not be aggre- 
gated for the purpose of making a case of grand larceny, if they were 
separate and distinct transactions; and that the prisoner should not 
be confined in the Federal penitentiary, but should be confined in the 
United States Military Prison at Fort Leavenworth, Kans. 

(30-200, J. A. G., July 23, 1914.) 



DETACHED SERVICE: Instructors at joint camps composed of regular 
troops and organized militia; service with troops in the field. 

Opinion was desired as to wdiether officers of the Army ineligible 
for general detached service might be detailed for duty as instructors 
at joint camps composed of regular troops and organized militia for 
periods not to exceed, in each case, 60 davs in any calendar year. 
The detached service legislation, which required a certain period of 
duty with a specified command to establish eligibility to be detached 
or to remain detached from such command for duty of any kind, 
was subject to exceptions, one of which was contained in the act of 
April 27, 1914 (Pub. No. 91, p. 8), reading as follows: 

" That temporary duty of any kind hereafter performed with 
United States troops in the field for a period or periods the aggre- 
gate of which shall not exceed sixty days in any one calendar year, 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 409 

* * * by any officer who, before assignment to such duty, shall 
have been regularly assigned to, and shall have entered upon duty 
with, an organization or a command the detachment of certain officers 
from which is prohibited by the act of Congress approved August 
24, 191ii, or by this act shall, for the purposes of said acts, hereafter 
be counted as actually present for duty with such organization or 
command." 

Held., that a contingent of the Eegidar Army employed in the 
usual joint camps composed of regular troops and organized militia 
should be regarded as " troops in the field " within the meaning of the 
above provision ; that officers performing duty with troops were not 
limited to the performance of any particular kind of duty in order to 
be brought within the special rule; and that officers detailed as in- 
structors at such camp were serving with troops within the meaning 
of said provision, if they had been assigned to and entered upon 
duty with commands with which the general law required them to 
serve for a particular period and such assignment of duty status con- 
tinued concurrently with such duty. 

(6-124, J. A. G., July 6, 1914.) 



DETACHED SERVICE: Service with troops; field officer performing duty 
as coinnianding' officer and in other capacities, in connection with a 
Coast Artillery district; umpire at target practice. 

The detached-service legislation established the general rule that 
a field officer of the line must have been actually present for duty 
for at least two of the last preceding six years with a command com- 
posed of not less than two troops, batteries, or companies of his 
branch of the service before he could be detached from such com- 
mand for duty of any kind. 

Held., that a Coast Artillery district was a conmiand composed of 
not less than two companies of Coast Artillery in the sense of said 
legislation, and that a field officer of that branch of the service per- 
forming duty as commanding officer of a Coast Artillery district, 
or as adjutant or as materiel officer of such a district, should be con- 
sidered as actually present for duty with such a command. Held 
further., that the duties of an umpire, as laid down in the regidations 
for target practice of the Coast Artillery Corps, were not organiza- 
tional or functional duties pertaining to the district, were not in- 
herent in the organization, and were not regular staff duties at all, 
and that the duties of such an umpire could not be held to be duty 
performed with troopsi in the field within the meaning of the pro- 
vision in the act of April 27, 1914 (Pub. No. 91, p. 7), which allows 
temporary duty of any kind performed wath United States troops in 
the field for periods not exceeding 60 days in any one calendar 3'ear 
to be counted as presence for duty with organizations or commands. 

(6-124, J. A. G., July 10, 1914.) 



EMPLOYEES: Of the United States; employment of foreigners in construct- 
ing improvements. 

The question was raised as to whether the War Department could 
give a preference to Americans in the employment of skilled and un- 
skilled laborers in making improvements at the Presidio, San Fran- 



410 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

cisco, Cal. The constructing quartermaster at San Francisco had 
been hiring labor for the purpose, taking the employees, as far as 
possible, from the list of eligibles submitted by the local civil-service 
secretar}^, but in cases where no eligibles were furnished he employed 
the men who were the most suitable and the most available for the 
work, without regard to nationality. 

Tleld^ that the restriction suggested could not lawfully be imposed 
by the Secretary of War in the employment of labor for the purpose 
mentioned, but that the matter was peculiarly within the jurisdiction 
of the legislative department of the Government. See Dig. Ops., 
J. A. G., 1912, p. 373, XXXIII A. 

(4-350, J. A. G., July 1, 1914.) 



EMPLOYEES: Pour-hour day on Saturdays; temporary employees. 

The Executive order of June 9, 1914 (BuL No. 2G, W. D., 1914), 
prescribed that four hours should constitute a day's work on Satur- 
days from June 15 to September 15 of each year, until further notice, 
" for all clerks and other employees of the Federal Government, 
wherever employed." The question arose as to whether the order 
applied to per diem men and dock seamen employed in the transport 
service in San Francisco, Cal., for irregular periods. 

Ileld^ that the order should not be construed so as to include within 
its provisions men who are engaged and discharged from day to day, 
according as their services might or might not be required, but that 
it did include all who had an indefinite status whether their pay was 
measured by the day, by the month, or by the year, and that where 
such employees were required to work more than four hours on 
Saturdays within the period specified in the Executive order, it 
should be in pursuance of exceptions prescribed by the head of a 
department for public reasons. 

(16-030, J. A. G., July 23, 1914.) 



ENLISTED MEN: Of the Army; service in the volunteer forces or in the 
militia when called into the service of the United States. 

Certain enlisted men of the Regular Army desired to accept com- 
missions in the organized militia for service in the United States or 
in the volunteer forces of a state for like service. Upon considera- 
tion of their status should they desire to reenlist after such service — 

Held— 

1. That a soldier on the active list of the Regular Army could not 
accept a commission in the volunteer forces or in the militia in the 
service of the United States and retain his status as an enlisted man 
in the Regular Army; and that for such purpose he could not be 
placed on an indefinite furlough, but must be discharged from the 
Regular Army before accepting such commission. 

2. That in the event of his discharge from the Regular Army for 
the purpose of enabling him to accept a commission in the volunteer 
forces or in the organized militia in the service of the United States, 
on his subsequent return to the ranks of the Regular Army as an 
enlisted man upon his muster out as a commissioned officer in such 
service, he would not be deprived of the right to continuous-service 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 411 

pay earned by him "before the acceptance of his commission, provided 
he reenlisted in the Regular Army within three months after his last 
discharge therefrom, exclusive of the time spent by him as such 
volunteer or militia officer. 

3. That he would not be entitled to credit for his volunteer or 
militia commissioned service either for continuous-service pay pur- 
poses or for retirement. 

(72-220. J. A. G., July 21, 1914— two cases.) 



HEAT AND LIGHT: Heating' of quarters, not public, occupied by officers 
and enlisted men on temporary duty. 

Certain officers and enlisted men on temporary duty at Galveston, 
Tex., occupied quarters, not public, heated by separate heating and 
gas. plants. It was assumed that they were not drawing any fuel 
allowance elsewhere, and that they were occupying said quarters by 
proper authority. Paragraph 1026, Army Eegulations, 1913, as 
amended, so far as applicable, provided : 

" Where an officer or enlisted man is occupying quarters other than 
public heated by a separate plant, the quartermaster will reimburse 
such officer or enlisted man for the fuel actually necessary for the 
rooms actually occupied, and not exceeding the number to which the 
rank of the officer or enlisted man entitles him, as specified in para- 
graph 1044, and in no case exceeding the maximum allowance set 
forth in the following table for the zones of equal temperature in 
which serving." 

Held^ that the officers and enlisted men could not be furnished 
with fuel in kind under the above regulation, but that they were 
entitled to be reimbursed for the fuel purchased by them actually 
necessary to heat the rooms actually occupied, not exceeding the 
number to which their rank entitled them, and not exceeding in cost 
the maximum allowance for the zone of temperature in which they 
were serving. 

(72-313. J. A. G., July 28, 1914.) 



MILITIA: Organized, engaging in joint encampments and maneuvers; 
cost of transportation of subsistence purchased for. 

The organized militia of the State of Iowa was about to engage 
in a joint encampment and maneuver with a portion of the Regular 
Arm}^, and application was made by the state authorities to purchase 
from the United States quartermaster at the camp subsistence stores 
of the Army for use of the state militia at said encampment. 

Held, that subsistence stores might be supplied by the officers of 
the Army for the use of the organized militia at said joint encamp- 
ment at cost price, with cost of transportation to the point of con- 
sumption added, and that such cost should be charged against the 
militia appropriations available for joint encampments. 

(94-500, J. A. G., July 21, 1914.) 

Note. — In an indorsement of August 4, 1914, in this case, it was 
held that the same rule applied to all subsistence stores furnished to 
organized militia at joint encampments. 



412 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEBAL. 

NAVIGABLE WATERS: Obstructions to navigation; authorization by the 
President of physical connection with foreign territory. 

Permission in general terms had been granted by the President to 
a telegraph-cable company to land, construct, maintain, and operate 
a cable connecting its foreign cables with San Juan, Porto Rico. 

Held., that the power of the President to grant a physical connec- 
tion M'ith foreign territory, in the absence of a statute granting or 
refusing such permission, was a political one which he might exercise 
subject to the laws governing the subject matter; that the permission 
granted was subject to the laws of the United States for the protec- 
tion of navigable waters; and that even if the President had given 
his consent to the establishment of the physical connection under 
such conditions as he saw fit, the structures proposed to be placed in 
the navigable waters of the United States could be so placed only in 
accordance with the laws governing the placing of structures in such 
navigable waters. Held further., that the company should be required 
to submit its plans and specifications and a map of the proposed loca- 
tion of its works, for approval as to the navigation interests involved. 

(62-390, J. A. G., July 6, 1914.) 



PAY OF ENLISTED MEN: Continuous service; reenlistment after com- 
pleted enlistment period and subsequent dishonorable discharge. 

Attention is invited to the decision of the Comptroller of the 
Treasury of June 3, 1914 (Bui. No. 33, W. D., 1914, page 15), as 
affecting the provisions of paragraph III, General Orders No. 44, 
War Department, June 24, 1913, relating to the notation of enlist- 
ment periods upon descriptive and assignment cards and enlistment 
papers. In the said decision it was held that enlistments closed by 
honorable discharge became fixed and determined when the honor- 
able discharge was given, and that upon reenlistment after three 
months after such honorable discharge, a soldier should be carried 
as in his second enlistment period, notwithstanding an intervening 
dishonorable discharge from another enlistment. 



PUBLIC PROPERTY: Disposition of horse injured while in shipment; duty 
of common carrier; measure of daraages. 

A horse belonging to the Government was injured while in ship- 
ment in the hands of a common carrier so as to be useless for the 
public service. It was removed from the car at an intermediate 
station between the place of shipment and destination, and was 
afterwards sold by an agent of the carrier to a private party for 
much less than its former value. The horse had not been inspected 
and condemned nor ordered to be sold by any officer of the United 
States. 

Held., that it was the duty of the common carrier in dealing with 
the property to act for the best interests of all concerned, and that 
as the carrier had attempted so to act and had assumed full responsi- 
bility for the loss, the sale might properly be ratified ; and that the 
measure of damages was the value of the horse at the place of desti- 
nation, less freight for shi lament. 

(80-010, J. A. G., July 8, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 413 

HANK: Coniniissioned officers oi same date of appointment; commissioned 
service in the Navy. 

Four officers, graduates of the United States Naval Academy, were 
appointed second lieutenants in the Army and given rank according 
to the dates of their graduation and according to class standing as 
between two of them who had graduated on the same day. 

Section 1219, Revised Statues, provided: 

" In fixing relative rank of officers of the same grade and date 
of appointment and commission, the time which each may have 
actually served as a commissioned officer of the United States, 
whether continuously or at different periods, should be taken into 
account. * * *." 

Two of the officers had had previous commissioned service in 
the Navy which, if counted, would have changed the order of rela- 
tive rank among them. 

Held^ that the statute did not include commissioned service in the 
Navy to be counted in determining the relative rank of officers of 
the same grade and date of appointment, and that the officers were 
not entitled to have the same counted in determining their relative 
rank. Dig. Opin., J. A. G., 1912, p. 966, A 2. 

(82-211, J. A. G., July 23, 1914.) 



SOLDIERS: Disposition of remains of deceased; reward for recovery of 
bodies. 

Two enlisted men of the Army had been drowned and rewards 
were offered for the recovery of their bodies. The bodies were 
recovered in pursuance of the offer and application made for the 
rewards. The sundry civil act of June 23, 1914 (38 Stat., 31), appro- 
priated for the disposition of remains of officers and soldiers on the 
active list of the Army, including expense of interment of such 
remains and of their preparation and transportation to their homes 
or to national cemeteries. 

Held, that the work of recovering the bodies, was an incident to 
their proper interment and preparation and transportation, for 
which a reward might properly be offered, and that the rewards 
should be paid from the appropriation for the disposition of the 
remains of officers and soldiers. 

(80-015, J. A. G., July 17, 1914.) 



SOLDIERS' HOME: Admissions to; ability of applicant to earn a living 
outside. 

Two discharged soldiers of the United States Army were admitted 
into the Soldiers' Home, Washington, D. C, for temporary treat- 
ment for disabilities which had occasioned their discharge from the 
Army. They were relieved sufficiently to permit of their earning 
their living outside the Home, but their disabilities were such that 
they could not again be fitted for military service. Neither had 
served as much as 20 years in the Army when discharged. 



414 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Section 4821, Revised Statutes, defining the classes of persons 
entitled to the rights and benefits of the Soldiers' Home, prescribed 
as admissible thereto: 

" Every soldier and every discharged soldier, whether Regular or 
Volunteer, who has suffered, or may suffer, by reason of disease or 
wounds incurred in the service and in the line of his duty, rendering 
him incapable of further military service, if such disabilty was not 
occasoned by his own misconduct." 

Section 4823, idern, provided that : 

"Any soldier admitted to the Soldiers' Home for disability who 
recovers his health so as to become fit again for military service, if 
under 50 years of age, shall be discharged." 

Held, that the Soldiers' Home was an eleemosynary institution 
for the dispensing of charitable relief to the classes of persons de- 
scribed in the law as entitled to its benefits, which benefits included 
treatment for diseases or disabilities of soldiers and the furnishing 
of an asylum or home to the inmates, and, except as to treatment for 
disabilities of those subject to discharge when fit for military duty, 
the benefits of the institution, owing to its character, could be ex- 
tended only to those in need of an asylum or home or in need of 
medical treatment and who were unable to provide the same for 
themselves. Held therefore, that the persons in question, being able 
to earn a living for themselves outside the institution, were properly 
denied permanent admission thereto. 

(80-441.4, J. A. G., July 17, 1914.) 



TRANSPORT SERVICE : Use of United States Army transports in convey- 
ing Chinese exhibits to the Panama-Pacific International Exposition at 
San Francisco. 

A request was made by the commissioner and secretary of the 
Chinese Republic Commission for the use of a United States Army 
transport in conveying Chinese exhibits to the Panama-Pacific Inter- 
national Exposition, at San Francisco, Cal. These exhibits were the 
private property of Chinese merchants, and the request amounted to 
one for the use of Government transports in transporting private 
property. 

The act of March 2, 190T (34 Stat., 1170), contained the provision: 

" That no part of this appropriation shall be applied to the pay- 
ment of the expenses of using transports in any other Government 
work than the transportation of the Army, its supplies, and em- 
ployees." 

Held, that this provision, in view of the context, has been regarded 
as permanent legislation and as restricting the use of Government 
transports to the purposes stated therein, with certain exceptions 
expressly authorized by Congress; and that the effect of the statute 
for to prohibit the use of Army transports for the purpose requested. 

(94-110, J. A. G., July 30, 1914.) 



TRANSPORTATION :Settlement for unused portion of ticket furnished an 
Army nurse for transportation to her home. 

A railroad company issued to an Army nurse a ticket in exchange 
for a transportation request given for her transportation from her 
duty station in San Francisco, Cal., to her home in Chicago, 111., with 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 415 

a view to her discharge. She traveled only as far as Ogden, Utah., 
having elected to remain at that place for purposes of her own. 

Held^ that there being no statute giving to an Army nurse the 
right of transportation in kind to her home on discharge, or mileage 
in lieu thereof, the travel performed in going to her home for dis- 
charge w^as travel as an employee of the United States, and that she 
had no right to any portion of the ticket which had not been used, 
but whatever rebate there was belonged to the Government. 

(94-430, J. A. a, July 20, 1914.) 



DECISIONS OF THE COURTS. 

(Digests prepared in the office of the Judge Advocate General.) 

CONTRACTS: Annulling for default of contractor and reletting; damages 
against the contractor. 

A contract was entered into for dredging in San Pablo Bay, Cali- 
fornia, in which it was specifically provided that the spoil or waste 
from the dredging should be dumped behind bulkheads. On the 
ground that the contractor had failed to comply with the require- 
ments of his contract, the Government proceeded under a paragraph 
in the contract to annul the same and to complete the work by means 
of another contract. In the advertisement for reletting the work 
the option was given to dump the spoil behind bulkheads as required 
in the original contract or to dump the same in deep water, and 
the contract was entered into on the basis of the latter alternative. 
Suit was brought by the United States to recover damages from the 
contractor and his sureties for failure to complete he work as con- 
tracted for. 

Held^ that the change in the location for dumping the material 
dredged was a material one and amounted to an important variation 
from the original contract so as to make it a different work from 
that which the original contractor was to perform, and that such 
contractor was not bound for the difference between the cost of the 
completed work under the original contract and the cost under the 
new contract. 

{United States v. AxTnrni, 234 U. S., 36, Mar. 9, 1914.) 



PAY OF OFFICERS: During absence with leave; leave without pay. 

An officer of the Army, having accepted employment with a com- 
mercial company, was granted six months' leave of absence which 
was afterwards extended four months. After the expiration of six 
months and during the extension of the leave he was notified that, 
by direction of the President, although his leave was not revoked, his 
alDsence would be without pay. The officer did not request leave 
without pay nor did he protest against the action of the President or 
relinquish his leave and return to duty. 

Held^ that the officer was entitled to pay during the period for 
which it was directed that his leave should be without pay, and judg- 
ment was rendered accordingly, reversing a prior decision of the 
court in the same case (47 Ct. Cls., 51). 

{Andrews v. United States, Court of Claims No. 30785, Mar. 16, 
1914.) 



BULLETIN 43. 

Bulletin 1 WAR DEPARTMENT, 

No. 43. J Washington, September 25^ 191 Jf. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of August, 1914, including one for 
July, 1914, not heretofore published, and of certain decisions of 
the Comptroller of the Treasury, is published for the information 
of the service in general. 
[2194536A, A. G.' O.] 
By order of the Secretary or War : 

W. W. WOTHERSPOON, 

Major General^ Chief of Staff. 
Official : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ABSENCE: On account of disease caused by misconduct; pay of enlisted 
men. 

A recruit was convicted by summary court-martial of having 
Avhisky in his possession in company barracks and of being under 
the influence of liquor in said barracks, and was sentenced to 10 
days' confinement with forfeiture of $2 of his pay. He had enlisted 
subsequently to the act of April 27, 1914, which provided (Pub. 
No. 91, p. 3), that no enlisted man in the active service "who shall 
be absent from duty on account of disease resulting from his own 
intemperate use of drugs or alcoholic liquors, or other misconduct, 
shall receive pay for the period of such absence," and further, " that 
an enlistment shall not be regarded as con\plete until the soldier 
shall have made good any time in excess of one day lost" on said 
account. 

Fleld^ that the " other misconduct " mentioned in the statute was 
referred to as a cause of disease and not as a cause of absence, 
and that while the soldier would be required to make good any 
time lost in excess of one day while being held for trial or under 
punishment for drunkenness or for the other misconduct mentioned, 
such absence would not be attended with loss of pay under the 
statute. 

(34-052, J. A. G., Aug. 20, 1914.) 



AVIATION SERVICE: Act establishing an aviation section; repeal of 
statute. 

The act of March 2, 1913 (37 Stat., 705), provided that the pay 
and allowances fixed by law for officers of the Regular Army should 
be increased by 35 per centum for officers detailed by the Secretary 
416 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 417 

of War for aviation duty, provided that sncli increase should be 
given only to such officers as were fliers of heavier-than-air craft 
and while so detailed. The act of Jnly 18, 1914 (Pub. No. 113), 
provided for the organization within the Signal Corps of a section 
not to exceed 60 officers and 260 enlisted men, the officers to be 
detailed from the line of the Army below the grade of captain, for 
limited periods, the extra compensation provided for them being 
much greater than that provided in the act of Mafch 2, 1913. This 
organization was charged with the duty of operating or supervising 
the operation of all military air craft, appliances and signaling ap- 
paratus appertaining thereto, and also w^ith the duty of training 
officers and enlisted men in matters pertaining to military aviation. 
There was no provision in the later act specifically repealing the 
former. 

Held^ that the new law was not repugnant to the old, and there 
being no specific provision in the new act repealing the old, the act of 
March 2, 1913, remained in force and was in no way destroyed or 
diminished by the new legislation. 

(6-228.1, J. A. G., July 30, 1914.) 



CLERKS AND EMPLOYEES: Detail of; diversion of appropriations. 

An officer of the Inspector General's Department desired the serv- 
ices of a stenographer while inspecting maneuver camps in Oregon, 
and the quartermaster at Portland, Oreg., offered the services of a 
stenographer from his office. 

Held, that the detail of a clerk from the office of the quartermaster 
at Portland for duty with an inspector in making inspections of 
maneuver camps, would be a violation of section 3678, Revised Stat- 
utes, providing that — 

"All sums appropriated for the various branches of expenditure 
in the public service shall be applied solely to the objects for which 
they are respectively made, and for no others " ; but that there was no 
legal objection to the employment of said stenographer by the In- 
spector General's Department if the employment could be so ar- 
ranged as not to conflict Avith his duties in the Quartermaster Corps. 

(6-224, J. A. G., Aug. 6, 1914.) 



CONTSACTS: Assignment of, to surety; payment to assignee. 

A contractor, having become financially involved and unable to 
complete his contract, assigned the same, after a portion of the work 
had been performed, to the surety company on his contract bond, and 
executed a power of attorney to said compan}^ authorizing it to col- 
lect from the Government all amounts due and to become due for 
work done under the contract. 

Held^ that in view of the fact that the surety company had an 
equitable right to complete the work in default of the contractor and 
to have all moneys due applied to the discharge of the claims of labor 
and material men {Richards Brick Co. v. Rotkincll, 18 App. Cases 
(D. C), 516; 31arhle Co. v. Burgdorf, 13 idem-, 506, 509), the assign- 



93668°— 17 27 



418 DIGEST OF OPII^IOXS OF THE JUDGE ADVOCATE GENERAL. 

ment was not "within the prohibition of section 3477, Eevised Stat- 
utes, forbidding tlie transfer of chiims against the Government, or 
of section 3737, idem^ prohibiting the assignment of Government con- 
tracts; and that, in view of the further fact that the assignee held a 
power of attorney from the contractor authorizing it to complete the 
work and to collect all moneys due, payment might be made to it, 
not only of all amounts due the contractor and unpaid, but also of 
amounts due for work performed bv the surety company. Dig. 
Comp. Dec. 336. 

(76-500, J. A. G., Aug. 10, 1914.) 



EIGHT-HOUR LAW: Horse breakers and farm hands. 

It was found necessary to increase the hours of labor to eight and 
onedialf hours per day for certain horse breakers and members of the 
farm gang at the Fort Eeno, Okla., remount depot, owing to the con- 
dition of Avork thereat and to the existence of a heavy corn crop 
which required to be cut and removed at once in order to avoid mate- 
rial loss to the Government. Section 1 of the act of INIarch 3, 1913 
(37 Stat., 726), limited the service and employment "of all laborers 
and mechanics" employed by the Government upon a public work 
of the United States, to eight hours in any one calendar day, and 
made it unlawful to require or permit such laborers or mechanics to 
work for a longer time except in cases of emergency. 

Ileld^ that said law did .not apply to farmers or farm hands; that 
the horse breakers and the farm gang should be regarded as farm 
hands and not as laborers or mechanics within the meaning of the 
eightdiour statutes; and that they were, therefore, not subject to the 
restrictions of said statutes. Opin. J. A. G., Sept. 27, 1913. 

(76-720, J. A. G., Aug. 29, 1914.) 



EMPLOYEES: Of the Quartermaster and Medical Corps; issue of fuel in 
kind to; Army Regulations. 

Paragraph 1014, Army Regulations, 1913, before amendment pro- 
vided for a fuel allowance for "each employee of the Quartermaster 
Corps or Medical Corps to whom sul)sistence in kind is furnished by 
the Government." Changes Army Eegulations, No. 7, June 11, 1914, 
in amending said regulation, omitted all provision for allowance of 
fuel in kind, including the allowance theretofore provided for civilian 
employees, but specified the number of rooms to which officers and 
enlisted men in quarters were entitled and the allowance of cooking 
and heating stoves supplied for their use, including also stoves for 
civilian employees. 

Held^ that there was no law which provided for a fuel allowance 
to ciA'ilian employees serving with tlie Army, and that they became 
entitled to the benefits of heat and light in (piarters only by reason 
of the character of their service or their contracts of employment, 
and were not entitled thereto as a jiersonal allowance. 

lleU further^ that fuel might still be issued to such civilian em- 
ployees as theretofore, although unprovided for bv regulations. 

(16-400, J. A. G., Aug. 18, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 419 

HEAT AND LIGHT; Furnished to officers' quarters while on temporary- 
duty with troops. 

An officer on duty with troops at Laredo, Tex., with permanent 
station at Fort Thomas, Ky., occupied public quarters at Laredo 
suitable to his rank. He had closed his quarters at his permanent 
station. The act of February 27, 1893 (27 Stat., 478), provided that 
officers temporarily absent on duty in the field should not lose their 
right to quarters or commutation thereof at their permanent stations 
while so temporarily absent, and the act of March 2, 1907 (34 Stat., 
1167), provided for furnishing at Government expense heat and light 
" actually necessary for the authorized allowance of quarters for 
officers and ehlisted men." 

Ileld^ that while the law allowed, for the time being, a dupli- 
cation of quarters to officers temporarily absent on duty in the field, 
one set at the officer's permanent station and another in the field, 
there was no authority for heating and lighting both sets of quarters 
at Government expense, but that the officer might be provided with 
heat and light for his temporary quarters where he Avas serving, if it 
were shown that no such allowances had been provided at Govern- 
ment expense for his quarters at his permanent station. 

(72-310, J. A. (t., Aug. 18, 1914.) 



MARINES: Quartermaster stores supplied to, while serving with the 
Army; reimbursement of appropriations. 

Certain marines who, by order of the President, were serving with 
the Army in Vera Cruz, Mexico, had been supplied by the Quarter- 
master's Department of the Armj^ with quartermaster stores needed 
for their service. Section 1135, Revised Statutes, provided that — 

" The officers of the Quartermaster's Department shall, upon the 
requisition of the naval or marine officer connnanding any detach- 
ment of seamen or marines under orders to act on shore, in coopera- 
tion with land troops, and during the time such detachment is so 
acting or proceeding to act, furnish the officers and seamen with 
camp equipage, together with transportation for said officers, seamen, 
and marines, their baggage, provisions, and cannon, and shall furnish 
the naval officer commanding any such detachment, and his necessary 
aids, with horses, accouterments, and forage." 

Held, that the appropriation for the Quartermaster Corps should 
be reimJjTU'sed from Marine Corps appropriations for supplies so fur- 
nished. Op. J. A. G., C 20461, Jan. 31, 1907; id. 5-242, June 1, 1914; 
13 Comp. Dec, 529. 

(5-242, J. A. G., Aug. 12, 1914.) 



MILITIA: Organized; pay of, while attending encampment; rank above 
commission. 

An officer of the organized militia was commissioned a first lieuten- 
ant in the quartermaster's department of the state, but by special 
order of the adjutant general's office of the state his commission, with 
that of certain other officers, was continued in force for state military 



420 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

j)iirposes, but for United States service or other service entitling liini 
to Federal pay, his rank was raised to captain. The organized 
militia of the state was made to conform to the Federal militia law, 
which required that the organization of the organized militia should 
conform to that of the Regular Army of the tlnited States. In the 
Kegular Army no provision was made for a first lieutenant in the 
organization of the Quartermaster Corps. 

Held,) that the officer, while attending an encampment of the or- 
ganized militia, should be regarded as a first lieutenant in said 
militia for pay purposes, and could not be paid as of the rank of 
captain. 

(58-600, J. A. G., Aug. 21, 1914.) 



NEUTKALITY: Admission of sick and wounded belligerents to Army hos- 
pital. 

It Avas currently reported that there were in the neighborhood of 
San Francisco, Cal., a number of naval vessels belonging to two Eu- 
ropean i^owers then at war with each other, and the question arose as 
to whether the facilities of the TTnited States hospital at that place 
might be extended to the sick and wounded belligerents. 

Ileld^ that international law has long recognized it to be a proper 
act of humanity to grant asylum to soldiers and sailors of a bellig- 
erent (2 Oppenheim, 410), and that if the commander of a belligerent 
ship of war should request it, the benefits of the Army hospital might 
be extended to the sick and wounded officers and seamen of such ves- 
sels, but on the condition that such officers and seamen should become 
interned prisoners. 

(99-700, J. A. G., Aug. 15, 1914.) 



PRIVATE PROPERTY: Loss of, due to artillery practice; articles necessary 
for use in quarters. 

An officer of the Army sustained the loss of a quantity of china and 
glassware which he valued at $620, which loss was occasioned by the 
falling of a china closet in which it was contained, in his quarters at 
West Point, N. Y, The falling of the closet was due to heavy artil- 
lery practice at the post coupled with faulty construction of the 
closet. 

Held, that from the unusually expensive character of the articles 
destroyed, they could not be considered such as the Secretary of AVar 
should determine to be reasonable, useful, and necessary for the officer 
in service while in quarters, within the meaning of the act of March 
3, 1885 (23 Stat, 350), but that the claim might be adjusted and re- 
ported to Congress for appropriation under the provisions of the act 
of August 24, 1912 (37 Stat., 586), as a loss of private property not 
exceeding $1,000 in value occasioned by heavy gun fire and target 
practice of troops, the act applying to losses of private property of 
officers residing upon military reservations as well as to losses of the 
property of ci\'ilians. 

(18-463, J. A. G., Aug. 31, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 421 

PURCHASE OF SUPPLIES: From persons in the military service. 

A corporation duly organized under the laws of the State of Kansas 
submitted a bid for supplying butter at Fort Riley in said state for the 
month of June, 1914. The secretary of the company was a Govern- 
ment clerk in the United States Mounted Service School. Paragraph 
521, Army Regulations, 1913, prohibited the purchase of supplies for 
the Government from any person in the military service or the con- 
tracting with any such person to furnish supplies or service to the 
(lovernment. 

Held^ that said regulations did not apply to contracts made with 
incorporated companies (Dig. Op. J. A. G., 1912, p. 353 A 5), and rec- 
ommended that the company be informed that the fact that some of 
its officers or stockholders might be employed in the military service 
did not disqualify it from submitting proposals to furnish supplies, 
but that paragraph 527 of the same regulations prohibited persons 
belonging to or employed in the military service from rendering as- 
sistance in the preparation of ])roposals. 

(76-331.4, J. A. G., Aug. 4, 1914.) 



E.EENLISTMENT : After four years' service and passing to the reserve. 

The first proviso of section 2 of the actof August 24, 1912 (37 Stat., 
590), provided that at the expiration of four years' continuous service 
imder a first or a subsequent enlistment a soldier might be enlisted 
for another period of se^'en years, and that in such event he should 
receive his final discharge from his prior enlistment. The sixth pro- 
viso of said section provided — 

" That, except upon reenlistment after four years' service or as now 
otherwise provided for by law, no enlisted man shall receive a final 
discharge until the expiration of his seven-year term of enlistment, 
* * * but any such enlisted man may be reenlisted for a further 
term of seven years imder the same conditions in the Army at large." 

Held^ that a soldier sv^ho had [not] been reenlisted immediately 
after the completion of four years' service, but who had passed to the 
reserve, might be reenlisted for another term of seven years upon the 
condition precedent that he be given by the Secreary of War a final 
discharge from his prior enlistment for the purpose of such reenlist- 
ment, such a discharge being authorized in the interests of the Gov- 
ernment. 

(6-300, J. A. G., Aug. 22, 1914.) 



VEHICLES: Passenger-carrying; ambulances. 

Section 5 of the act of July 16, 1914 (Pub. No. 127, p. 61), pro- 
vided in part as follows: 

" No appropriation made in this or any other act shall be available 
for the purchase of any motor-propelled or horse-drawn passenger- 
carrying vehicle for the service of any of the executive departments 
or other Government establishments, or any branch of the Govern- 
ment service, unless specific authority is given therefor." 



422 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

The use of ambulances for canying passengers Avas forbidden by 
Army Regulations. 

Held., that the normal use of an ambulance was for carrying sick 
and wounded and necessary nurses or attendants on duty therewith, 
Avho were not passengers within the general meaning of the term, and 
that an ambulance, although capable of being used for carrying 
passengers, was not a passenger-carrying vehicle within the meaning 
of the provision referred to. 

(94-012, J. A. G., Aug. 14. 1914.) 



VOLUlSrTABy SERVIGE: Caring for and returning lost property. 

A horse belonging to a battery of the Fourth Field Artillery sta- 
tioned in Texas strayed from the battery stables during the night 
and was taken up by a private citizen, cared for, and returned to 
the militar}^ authorities. A claim was presented for the care of the 
animal and for forage fed to it before its return. No reward had 
been oifered for the horse's return, and there were no facts upon 
which to base a contract to pay for the services rendered. The 
statutes of the state did not give a lien upon the horse in favor of 
the person taking it up and returning it under the conditions stated. 

Held., that th^ services rendered were purely voluntary, and that 
no authority existed for the payment of the claim. 5 Comp. Dec, 
37; 11 idem, 741. 

(80-010, J. A. G., Aug. 28, 1914.) 



DECISIONS OF THE COMPTEOLLEE OF THE TREASURY. 

^'Digests prepared in the ot!ice of the Judge Advocate General.) 

BAILMENT: For hire; responsibility for loss of horse used contrary to 
contract. 

A quartermaster of the organized militili hired a team from a 
private citizen for use as draft animals in connection with forces 
engaged in joint maneuvers. The circular advertising for proposals 
stated that each horse must be able to stand the necessary drive of 
not to exceed 12 miles each day with a load of 3,000 pounds or less 
for a four-line team. The team in Avhich the horses were used was 
frequently required to haiil more than the maximum load fixed in 
the advertisement, for a greater distance per day, and o\er roads 
very lieaA-y and slippery; and was also subjected to extra hauling 
in bringing up food for the soldiers on rush orders. On coming in 
fi'om one of such extra trips one of the horses was worn out and 
shortly thereafter dropped dead, due to overexertion. 

field, that the case was one of bailment for hire for the mutual 
benefit of the pai'ties, and the horse having been used for a purpose 
substantially different from that for which it had l)een hired, and 
which use caused its death, the Go^'ernment was liable for the loss 
of tbe horse and the claimant was entitled to be paid its value. 

(Comp. Geo. E. Downey, Aug. 7, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 423 

COMMUTATION OF QUABTES-S: Assignment of, insufficient for family; 
station at place of duty. 

An officer of the Ordnance Department of the Army was directed 
to "■ proceed to New York City, take station at that place, and report 
to the commanding officer of the Sandy Hoolv Proving Ground, N. J., 
for duty." At the proA'ing ground there was a brick house owned by 
the Government and used as quarters for officers on duty there, 
which quarters consisted of one room for each officer, who also 
had the use in common with others of a dining room, a sitting room, 
and a reading room. The rooms were not adapted to the use of a 
family, and it was not permitted for officers to have their families 
there with them. The officer was furnished with quarters in this 
building of the character described. He had no duty to perform at 
New York City. 

Held, that having no duty to perform at New York City, the order 
directing him to take station there could not operate to give him a 
right to commutation of quarters as at that place (7 Comp. Dec, 
602), but that the actual station of the officer was at the place wdiere 
his duties were to be performed (20 id., 664). Held further., that 
quarters were the right of an officer for his personal use, and the 
Government was not obliged to furnish them for his family, nor was 
the availability for occupancy by a family the test of suitability of 
quarters; that the officer had been furnished with quarters (9 id,., 
736) : and that he was not entitled to the commutation paid him 
therefor. 

(Acting Comp. W. W. Warwick, Aug. 25, 1914.) 



CONTRACTS: Assignment of; payment to assignee. 

The Treasury Department entered into a contract for the construc- 
tion of a Federal building at AVahpeton, N. Dak. After a consider- 
able amount of work had been done, permission was asked to transfer 
the contract to the contractor for another Government building, no 
change to be made in the terms of the contract. 

Held, that while the transfer by one contractor to another of his 
rights under a Government contract in violation of section 3737, 
Revised Statutes, did not ipso facto annul the contract, but only gave 
the Government a right to annul the same, there was no authority for 
the officers of the Government to approve a proposed assignment or 
to recognize it in advance ; that in the event of such transfer the Gov- 
ernment might annul the contract and relet the work, or permit the 
work to be done by the contractor's assignee as his agent, the original 
contractor in either event to remain liable for an}^ damages resulting 
from his failure to carry out the original undertaking: but that the 
department would not be authorized to pay the contract price to the 
assignee. 

(Comp. Geo. E. Downey, Aug. 4, 1914.) 

Note. — Where the assignment is to the surety on the bond of the 
contractor, see opinion of J. A. G. of August 10, 1914, page 3, ante; 
also 9 Comp. Dec, 43. 



424 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

EXPENSES: Entertaining' foreign officials; transportation cf Army officer 
engag'ed in. 

An automobile was hired by verbal authority of an official of the 
AVar Department for the transportation from Washington, D. C, to 
Gettysburg, Pa., and return, of officers of the British Government in 
this country on an official mission and an officer of the General Staff 
of the Armj^ acting as their escort. A voucher was approved for 
payment fnmi the appropriation for the transportation of the Army 
and its supplies. 

Held, that the journey Avas in the nature of an entertainment of 
British officials and the hire of the automobile could not be regarded 
as a hire for official or military purposes, and that there was nO ap- 
propriation in the Army appropriation act or any other appropria- 
tion available for the hire of an automobile for the purposes indi- 
cated. 

(Comp. Geo. E. Downey, Aug. 8, 1914.) 



EXPENSES: Of military attache abroad; traveling expenses; pay of orderly 
and pay for tips. 

An officer of the Army presented an account for reimbursement of 
his expenses while a military attache at the American legation at St. 
Petersburg, Russia. The account represented cost of transportation 
to and from maneuvers which took place about 13 miles from St. 
Petersburg, his permanent station, the pay of an orderly, and tips 
given by attaches generally. 

Held, that as the officer was designated to obtain military informa- 
tion and as his travel was considered necessary or desirable for the 
purpose, the necessary expenses of transportation to and from the 
maneuvers pertained to his duties as military attache and should be 
paid by the United States (19 Comp. Dec, 594). Held further, that 
the items for pay of an orderly, and for tips, Avere personal expenses 
and not properly chargeable against the United States, and in the 
absence of any law authorizing the same they must be borne by the 
officer himself. 66 MSS. Comp. Dec, 433, Jan. 19, 1914. 

(Acting Comp. W. W. Warwick, Aug. 19, 1914.) 



PURCHASE OF SUPPLIES: In open market; advertising for contract. 

The Comptroller on his own motion revised certain settlements of 
the Auditor for the War Department involving the purchase, without 
advertising, of supplies for the use of the Army in excess of the limit 
of $500 authorized to be purchased without advertising by the amend- 
ment to section 3744, Revised Statutes, contained in the act of June 
12,1906 (34 Stat., ^58). 

Held, that said statute as amended permitted purchases in open 
market of supplies for all branches of the Army service when the 
aggregate amount required did not exceed $500, and that in the 
future payments made by disbursing officers in excess of that limit 
for supplies or services must be based on advertisement and Avritten 
contract. 

(Comp. Geo. E. Downey, July 28, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 425 

QUAHTEH-S: Hire of, by pay clerk where not furnished quarters in kind; 
reimbursement. 

A pay clerk in the Army in pursuance of orders reported to the 
quartermaster at the Presidio, San Francisco, Cal., for assignment 
to duty. He applied for quarters for himself which were refused by 
the commanding officer for the stated reason that there were no 
quarters at that place available for assignment to said pay clerk. 
The department quartermaster requested that quarters be hired for 
him, but the Chief of the Quartermaster Corps stated that no funds 
were available for the purpose and no quarters were hired. The pay 
clerlv thereupon hired quarters for himself and applied for reim- 
bursement. 

Held, that if at the time he applied for quarters there were unas- 
signed quarters at the post, he was denied a right to which he was 
entitled, and if there were no public quarters available he had the 
same right to have quarters rented for his use as any other officer of 
the Army ; but that the wrongful act of an officer of the Government 
in refusing to provide quarters for him did not raise a legal claim 
against the Government, and the pay clerk could not be reimbursed 
for the renting of quarters for himself or paid commutation there- 
for. 

(Acting Comp. W. W. Warwick, Aug. 28, 1914.) 



BETIRED ENLISTED MEN: Allotment of pay. 

A retired enlisted man of the Army signed a written request to 
have a portion of his monthlv pay paid to his wife until further 
notice. Section 16 of the act of March 2, 1899 (30 Stat., 981), au- 
thorized the Secretary of War to permit enlisted men to make allot- 
ments of their pay for the support of their families and for other 
purposes " during such time as they may be absent on distant duty, 
or under other circumstances warranting such action." 

Held, that the act applied to enlisted men on the active list and 
not to retired enlisted men; that the allotment was unauthorized; 
and that the request should not be recognized for the purpose of 
drawing a check in favor of the soldier's wife. 

(Acting Comp. W. W. Warwick, Aug. 22, 1914.) 



TRAVEL ALLOWANCES: On discharge; enlisted men; transportation from 
place of discharge. 

The act of August 24, 1912 (37 Stat., 576), provided that when 
an enlisted man of the Army was discharged from the service, except 
by way of punishment for an offense, he should be entitled to trans- 
portation in kind and subsistence from the place of discharge to place 
of enlistment or to such other place within the continental limits of 
the United States as he might select to which the distance was no 
greater. A discharged soldier had been furnished transportation 
from a place other than his place of discharge to a place other than 
his place of enlistment, the distance being less than from plgce of 
discharge to place of enlistment, but the distance from place of dis- 



426 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

charge was greater to the pkice to which transportation was fur- 
nished than to the phice of enlistment. 

Held^ that the issuance of transportation fi'om a place other than 
the place of a soldier's discharge or to a place the distance to which 
was greater than from place of discharge to place of enlistment, was 
unauthorized. The Comptroller declined to lay down a rule for the 
adjustment of the account of an officer issuing transportation in ex- 
cess of that to which the soldier might be entitled, as that would be 
to anticipate a violation of the law. 

(Comp. Geo. E. Downey, Aug. 4. 1914.) 



TRAVEL ALLOWANCES: On discharge; transportation varying from re- 
qT;iest. 

Theact of August 24, 1912 (37 Stat.. 576). provided for enlisted 
men discharged, except by way of punishment for an offense, trans- 
portation from place of discharge to place of enlistment or to any 
other place within the continental limits of the United States to 
which the distance was no greater. Pullman transportation requests 
were issued to the Pullman Co. by the t]uartermaster at Fort Mc- 
Dowell, Cal., to three discharged enlisted men of the Army calling 
for an upper berth from San Francisco, Cal., to El Paso, Tex., to 
Buffalo, N. Y., and to Washington, D. C, res^Dectively. Instead, 
the Pullman Co. furnished from San Francisco, one lower berth in a 
tourist sleeper to Portland, Oreg., one to New Orleans. La., and one 
to Chicago, 111., aggregating $14.25 in cost as against $16.80 had 
l*ullman berths been furnished according to the requests. 

Held, that the transportation request was an order by an agent of 
the Government on the carrier to furnish the class or character of 
transportation specified therein, between the points named, and to 
the persons named in the request, and that as the transportation fur- 
nished was not that which was requested by the Government, 
there was no privity of contract between the Government and the 
company with respect thereto. Under the circumstances the account 
presented was allowed as arising not upon the request, but upon a 
quantum meruit; but advised that transportation companies should 
be given to understand that they must adhere to the stipulations of 
the request or run the risk of haviug their claims for transportation 
denied. 

(Comp. Geo. E. Downey, Aug. 14, 1914.) 



BULLETIN 46. 

Bui^letinI war department, 

No. 46. J Washington, October 24, 19U. 

The following digest of opinions of the Judge Ad^■ocate General 
of the Army for the month of September, 1914, and of certain deci- 
sions of the Comptroller of the Treasury and of the courts, is pub- 
lished for the information of the service in general. 
[2194536 B— A. G. O.] 
By order or the Secretary of War : 

W. W. WOTHERSPOON, 

Major General, ('kief of Staff. 
Official : 
H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CIVILIAN EMPLOYEES: Failure to pay debts; disobedience of order 
requiring specific payments. 

T^pon complaint of his creditor, a civilian employee of the War 
Department Avas ordered by the department commander to pay $10 
per month on the 1st of each month until he had settled an indebted- 
ness of $125. The emploj^ee, after making one such payment, claimed 
that he Avas unable to pay $10 per month, and asked to be permitted 
to pay $5 per month. This Avas refused, and he Avas ordered to con- 
tinue the payments of $10 per month. Subsequently, he A\'as charged 
A^^ith failing to obey the last order. The employee's ansAver ^^'as in 
substance that he Av^as unable to make the payments. His discharge 
Avas thereupon recommended for disobedience of the order. 

Held, that the Secretary of W^ar would not be justified in order- 
ing the employee discharged for disobedience, Avithout having clear 
evidence that he Avas able to make the required payments and will- 
fully neglected to do so: that the department does not undertake to 
require employees to discharge their debts by the payment of any 
special amount, but regards the failure of an employee to settle a 
debt Avhich he is able to pay and the nonpayment of Avhich would 
result in complaints to the department as detrimental to the service 
and as indicating his unfitness therein, the same rule applying to 
civilian emploA^ees as to officers of the Army. 

(16-433, J. A. G., Sept. 18, 1914.) 

427 



428 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

COUBTS-MARTIAL : Suspended sentence; pay during confinement; form, 
of sentence. 

The Army act of April 27, 1914 (Pub. No. 91, p. 4), provided: 

" That the revieAving authority may suspend the execution of a sen- 
tence of dishonorable discharge until the soldier's release from con- 
finement.'' 

TleJd^ that the usual form of sentence, " to be dishonorably dis- 
charged with forfeiture of all pay and allowances," would limit the 
forfeiture of pay to the date of the proinulgation of the sentence, 
when it would be assumed that the sentence of dishononible discharge 
should take effect, and that where su.ch a sentence with confinement 
was imposed, a suspension of the sentence as to the dishonorable dis- 
charge would leave the soldier in receipt of pay during confinement. 
Advised, that the sentence of forfeiture of pay should be in the fol- 
lowing form : 

" To forfeit all pay and allowances due or to become due while 
undergoing confinement in pursuance of this sentence." 

(72-214, J. A. G., Sept. 11, 1914.) 



COURTS-MARTIAL: Summary courts; constitution of. 

A soldier was tried and convicted b}^ the recruiting officer acting 
as a summary court-martial in a district in which another recruiting 
officer was on duty in charge of an auxiliary or branch recruiting 
station.. The act of March 2, 1913 (37 Stat, 722), provided that 
the commanding officer of a garrison, fort, camp, or other place 
where troops are on duty might appoint a summary court-martial for 
his command, and further: 

" That when but one officer is present with a command, he shall be 
the summary court-martial of that command, and shall hear and 
determine cases brought before him." 

Held, that the branch recruiting office being in the same post 
or command as the principal office, there was more than one officer 
present with the command, and that the law by clear implication 
forbade the commanding officer to appoint himself as a summary 
court or to act as such when there was another officer with his 
command. Held therefore^ that the court was illegally constituted 
and its sentence null and void. 

(30-730, J. A. a, Sept. 24, 1914.) 



DAMAGES: Mistake in transmitting telegram; limiting liability of tele- 
graph company. 

A Government telegram delivered to a telegraph company for 
transmission read : 

" The Secretary of War finds it necessary to retain you here on 
account of prospective important duties." 

In transmitting the same the word " retain " was changed to 
" return," in consequence of which the officer to whom it was directed 
traveled from the place where he was located to AVashington, D. C, 
and return, for the purpose of reporting in pursuance of said sup- 
posed order. By a stipulation printed on the back of the blanks 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 429 

used by the telegraph company its liability in case of error in trans- 
mission was limited to a certain amount, unless the message was 
repeated. The message in question was not written upon such a 
blank. The telegraph company had assented to the rates fixed by 
the Postmaster General in pursuance of section 526G, Revised Stat- 
utes, to be charged for Government telegrams over lines of com- 
panies receiving benefits from the public domain, which rates were 
fixed without reference to any special contract limiting the liability 
of the transmitting companies. 

Ileld^ that the telegraph company was liable in failing to correctly 
transmit the telegram (37 Cyc, 1670), and that the expense of thie 
officer's travel, being a proximate result of the error in the trans- 
mission of the message, should be charged against the company in 
the settlement of its accounts. 

(22-050, J. A. G., Sept. 11, 1914.) 



DETACHED SERVICE: Status while traveling', on leave, or awaiting 
orders. 

A colonel of the Army serving with his regiment was about to 
be retired from active service on account of age. He had not served 
two years out of the last preceding six years with his appropriate 
command, and so was not eligible for detached service under the 
law of April 27, 1914 (Pub. No. 91, p. 7), which provided that an 
officer of his grade who had not been actually present for duty for 
at least two years out of the last preceding six years with a command 
appropriate to his grade should not be detached nor permitted to 
remain detached fi'om such comnumd " for duty of any kind," except 
as otherwise specifically provided, under a penalty of forfeiture of 
tlie pay of the superior officer by whose order or permission said 
requirement was violated. 

Ileld^ that if said officer should be ordered to his home to await 
his retirement, or ordered to his home and then given leave of 
absence until the date of his retirement, he would not be detached 
" for duty of any kind," within the meaning of said law, while travel- 
ing in obedience to said orders, while on leave, or while awaiting 
his retirement. 

(6-124, J. A. G., Sept. 8, 1914.) 



GUARDIAN AND WARD: Appointment; consenting to enlistment of 
minor. 

Questions were submitted for opinion as to whether a minor 
over 18 years of age whose parents resided permanently in a foreign 
country might have a guardian appointed in this country, and 
whether the consent necessary for the purpose of accepting such 
minor for enlistment as a soldier would be legal if signed by such a 
guardian. 

Held, that the appointment of a guardian under the circumstances 
mentioned was a matter that must be determined by the court hav- 
ing jurisdiction upon taking the proper procedure, and that it would 
be competent for a guardian so appointed to sign the consent neces- 



430 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

sary for the acceptance of his ward f(jr enlistment as a soldier, such 
action being within the nsiially recognized powers of a guardian over 
his ward. 

(34-070.1, J. A. G., Sept. 24, 1914.) 



MILITARY RESERVATIONS: Violation of regulations; authority to 
make. 

An affidavit in the nature of a complaint or information charged 
an individual with having violated the regulations promulgated by 
the Secretary of War for the government of the Gettysburg Na- 
tional Park bv driving an automobile therein at a rate of speed in 
excess of 12 miles an hour. The act of May 15, 1909 (29 Stat., 121), 
provided that national military parks should be open only under 
such regulations as the Secretary of AVar might prescribe, and sec- 
tion 6 of the act of February li, 1895 (28 Stat., 651), made it the 
duty of the Secretary of War to establish and enforce regulations 
for the custody, preservation, and care of monuments in the Gettys- 
burg NationalMilitary Park, Section 45 of the Criminal Code of the 
United States prescribed a punishment for anyone who " shall go 
upon any military reservation, army post, fort, or arsenal, for any 
purpose prohibited by law or military regulation made in pursuance 
of law." 

Held, that the statutes authorizing the Secretary of War to make 
regulations for the government of the national military parks were 
not a delegation of legislatixe authority {United States v. Grknaud^ 
220 U. S., 506), and recommended that the papers be referred to the 
Attorney General for his action. 

(80-430.1, J. A. G., Sept. 29, 1914.) 



PRISONERS: Under suspended sentence of dishonorable discharge. 

General Order No. 56, W. D. 1913, provided that only general pris- 
oners should be enrolled in disciplinary companies. Certain pris- 
oners had received sentences including dishonorable discharge, but 
which discharges had been suspended in pursuance of law. 

Held and advised — 

(1) That were it not for the suspensions of the sentences of dis- 
honorable discharge, said prisoners would clearly be general prison- 
ers, and it was suggested that they be carried as " General prisoners 
under suspended sentence." 

(2) That if a soldier's enlistment should expire during his confine- 
ment, report should be made of the soldier's character and conduct, 
Avith recommendation as to the discharge to be given him, in time to 
A'acate the order suspending the dishonorable discharge or to remit 
said discharge and the remainder of the term of confinement and re- 
store him to duty, before the expiration of such enlistment; but that 
he should be carried on the rolls of his organization until discharged 
or transferred, although there would be no objection to mustering 
this class of prisoners on one roll. 

(3) That this class of prisoners should be credited with good- 
conduct time during coufinement (he same as general prisoners. 

(30-482, J. A. G.; Sept. 3, 1914.) 



DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GENERAL. 431 

PRIVATE PBOPEE-TY: Of retired soldier who died in Army hospital; 
disposition of; Articles of War. 

A retired hospital steward, having been taken seriously ill in a 
hotel in San Diego, Cal., was removed to the post hospital at Fort 
Rosecrans, Cal., in a comatose condition, where he died the next day 
without regaining consciousness. Apparently he left no will and had 
no relatives. The commanding officer, holding that the personal 
property of the soldier should be disposed of as required by the 127th 
Article of \Yar and Army Regulation 163 of 1913, declined to deliver 
it to the county public administrator, who had been appointed admin- 
istrator to take over the estate and administer thereon under the 
direction of the probate court. 

Held,, that the action of the commanding officer and post surgeon 
in securing the effects of the deceased soldier and in forwarding the 
inventory to The Adjutant General of the Army, was correct ; that 
the administrator appointed by the court was a legal representative 
within the purview of the 127th Article of War; and that the prop- 
erty should b'e taken outside the reservation and there turned over 
to the administrator, so as to bring it within the jurisdiction of the 
state. Die-. Op. J. A. G., 1912, p. 939 (g). 

(6-155, J. A. G., Sept. 18, 1914.) 



PUNISHMENT; Additional to sentence; conduct regulations. 

By a conduct-grade classification in force at Fort Grant, Canal 
Zone, the enlisted men were divided into three classes. A, B, and C. 
Class A men w^ere furnished permanent passes and allowed to be 
absent from the post, except when detailed for duty, from report 
until reveille ; class B men were permitted to leave the post when not 
on duty by obtaining each time a regularly signed pass: and class C 
men, which included all who were undergoing company punishment 
or who had been recently tried, were restricted to the limits of the 
post. A private soldier was tried by court-martial and sentenced only 
to forfeiture of $10 of his pay per month for three months. In the 
operation of said regulations he was to be confined to the limits of the 
post until the termination of the forfeiture. 

Held., that the restriction of the soldier to the post as the result of 
his conviction by court-martial when his sentence involved forfeiture 
of pay only, was not authorized, as such restriction thereby increased 
the duly adjudged punishment in violation of a Avcll-settled rule of 
military law ; and that so much of the method of classifying men 
according to conduct at said fort as resulted in confining them to the 
post as a consequence of conviction by court-martial, in addition to a 
prescribed sentence, was contrary to military law and should be dis- 
continued. 

(30-750, J. A. G., Sept. 14, 1914.) 



SUPPLIES: Purchase of; contractor's request for relief from contract on 
account of increased prices due to European war. 

A bidder asked to be relieved from awards made to him for the 
supply of 1,300,000 pounds of oats under his bid of July 26, 1914, on 
the ground that after the acceptance thereof by the Government the 



432 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

imexpected advance in the price of oats was so great, due to the 
European war, that to furnish them at the price proposed would 
amount to his financial ruin. His bid was secured by an absolute 
guaranty binding the bidder, upon notice of acceptance of his bid, to 
make deliveries in accordance with the terms of the proposal and 
acceptance, or, if so required by the United States, to duly enter into a 
contract and furnish bond for the deliveries. 

Held, that the Secretary of War had no power to grant the request, 
and that Congress alone could give the desired relief. 

(76-600, J. A. G., Sept. 21, 1914.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of tlae Judge Advocate Geueral.) 

ABSENCE: Without authority; pay of civilian clerk, "Quartermaster 
Corps. 

A clei'k in the Quartermaster Department of the Army employed 
in the Philippines was granted 30 days annual leave in accordance 
with the provisions of the War Department circular of July 7, 1904, 
with permission to visit the United States. Said circular provided 
that such a leave should l^e calculated from the date the employee 
arrived in the United States from the Philippines to the date when 
he should leave San Francisco, CaL, in returning thereto. The clerk 
arrived in the United States on October 15, 1913, and his granted 
leave expired November 18 following. He was granted an extension 
on account of sickness, and this extension expired December 18. He 
left San Francisco on his return to the Philippines January 4, 1914. 

Held., that from the date following the expiration of his leave as 
extended on account of sickness until he sailed from the United States 
for the Philippines, he must be regarded as absent without authority 
and not in a pay status, and that payment to him of his pay for this 
period was erroneous. 

(Acting Comp. W. W. Warwick, Sept. 4, 1914.) 



CONTRACTS: Delays in completion; unforeseeable cause. 

A contract provided for the construction for the Government of 
eight steel barges to be delivered by a specified time, with a provision 
for the payment as liquidated damages of the sum of $5 for each day 
during which each barge should remain undelivered after the agreed 
(late. A provision in the contract extended the time during which 
delivery might be made for a period equal to the time lost " on ac- 
count of unusual freshets, ice. rainfall, * * * or other unfore- 
seeable cause of delay arising through no fault of the contractor" 
which might actually prevent completion within the agreed time. 
Before any construction work on the barges had been done a fire of 
unknown origin almost completely destroyed the contractor's plant 
and thus delayed the work of completing the barges for at least 40 
days from that date. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 433 

Ileld^ that the fire was an " unforeseeable cause of dehiy " within 
the meaning of the contract (18 Comp. Dec, 438), and as the delay 
thus caused exceeded the delay in the completion of the contract 
above the contract time, the contractor could not properly be charged 
with damages for the delay. 

(Acting Comp. W. W. Warwick, Aug. 31, 1914.) 



DAMAGES: Unliquidated; breach, of contract; jurisdiction of accounting 
officers. 

A contract provided for the delivery of 20,000 pounds of frank- 
furters upon the U. S. steamer Celtic at the navy yard, Brooklyn, 
N. Y., by April 20, 1914. The vessel sailed before the date named 
for delivery, and a verbal understanding was entered into to the 
effect that the contracting company should hold the frankfurters for 
future delivery, the Government to assume any charges that might 
accrue thereon due to its inability to receive the goods on the date 
named in the contract. The claim was disallowed by the auditor on 
the ground that it "is one for 'unliquidated damages' which the 
accounting officers of the Treasury Department are not authorized 
to settle." 

Ilelcl^ that the claim was not for damages incident to the breach 
of the contract, but for services rendered at the request of the proper 
Government officer, who was competent to contract therefor and to 
agree with the contractor after as well as before the performance, as 
to the value of the services {United States v. Corliss Steam Engine 
Co., 91 U. S., 321 ; 22 Op. Atty. Gen., 437 ; 6 Comp. Dec, 648 ; 14 id., 
589; 15 id., 439; 16 id., 504) ; and that the actual value of such serv- 
ices having been agreed upon by the parties, the claim presented, 
instead of being one for unliquidated damages, was a li(iuidated 
claim for the value of services actually rendered, which should prop- 
erly be allowed and paid. 

field further, that under section 236, Eevised Statutes, which pro- 
vided that " All claims and demands whatever by the United States 
or against them, and all accounts whatever in which the United 
States are concerned, either as debtors or creditors, shall be settled 
and adjusted in the. Department of the Treasury " and the act of 
July 31, 1894 (28 Stat., 205-209), the accounting officers of the 
Treasury Department have jurisdiction, except where otherwise pro- 
vided by statute, to settle all claims, whether liquidated or unliqui- 
dated; but they may not be able in some cases, because of lack of 
evidence or facilities to obtain it, to determine the justness of unliqui- 
dated claims, in which event such claims should be disallowed for 
that reason alone, and not on the ground of lack of jurisdiction; but 
held further, that the settlement of claims for unliquidated damages 
for torts involve no jurisdictional question in the accounting officers, 
and that such claims should be settled but should not be allowed, 
because they involve no proper legal charge against the Government. 
(Comp. Geo. E. Downey, Sept. 9, 1914.) 

93668°— 17 28 



434 DIGEST OF OPINIONS OF THE JUDCiE ADVOCATE GENERAL. 

HEAT AND LIGHT: Reimbursement of officer occupying house contain- 
ing more rooms than his authorized allowance of quarters. 

A lieutenant colonel of the Armj^, entitled to 6 rooms as quarters, 
occupied a private house containing 12 rooms, 2 of which were used 
solely for storage purposes, were not heated, and were not lighted 
except on rare occasions, while the other 10 rooms were heated and 
lighted at the oflicers expense. The building was separately heated 
and lighted, but there was no provision for separately heating and 
lighting any set of rooms corresponding to the officer's legal allow- 
ance of quarters. 

The act of March 2, 190T (34 Stat., 11G7), provided for furnishing, 
at the expense of the Ignited States, the heat and light necessary for 
the authorized allowance of quarters for officers under regulations 
to be prescribed by the Secretary of War. The regulations as 
amended fixed a money allowance per month for heating rooms 
actually occupied by officers witliin the limit of their allowance 
according to zones of equal temperature instead of tlie allowance of 
fuel in kind theretofore provided by regulations, and a similar pro- 
vision was made in the regulations respecting the lighting of such 
quarters, the amount to be paid to the owners of the quarters or their 
authorized agents. 

Held,, that the officer was entitled to reimbursement upon the 
proper vouchers for the entire amount expended by him for heat 
for the entire house occupied as quarters, not to exceed the money 
allowance fixed by regulation for six rooms in the zone in which the 
house Avas located, and that the Quartermaster Corps should pay the 
company furnishing the illuminating supply upon the same basis. 

(Comp. Geo. E. Downey, Sept. 11," 1914.) 



PTJIICHASES: By one bureau or department from another; adjustment of 
appropriations. 

The Army appropriation act of April 27, 1914 (Pub. No. 91, p. 21), 
provided that — 

" Hereafter in the settlement of transactions between appropria- 
tions under the Engineer Department, or between the Engineer De- 
partment and another office or bureau of the War Department, or 
of any other executive department of the Government, payment 
therefor shall be made by the proper disbursing officer of the Corps 
of Engineers or of the office, bureau, or department concerned." 

Held,, that in making payment for purchases for the Department 
of Commerce from the Engineer Department of the Army, the 
amount should not be deposited to the official credit of the officer 
of the Engineer Department, but the voucher should be prepared as 
in the case of an ordinary purchase of supplies from a dealer and 
pajanent made by check to the Chief of Engineers; and that checks 
received in payment of supplies furnished or services rendered to the 
Engineer Department should be indorsed to the Treasurer of the 
United States for deposit to the credit of the proper appropriation. 

(Comp. Geo. E. Downey, July 18, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 435 

E.EPAIBS: Damages to ligiitliouse tender by steamer of the Quarter- 
master Corps. 

A lighthouse tender belonging- to the Department of Commerce 
was damaged by a steamer belonging to the Quartermaster Corps, 
and a bill of $70 was rendered in favor of a private concern for mak- 
ing the necessary repairs. A board of ofiicers detailed for the pur- 
pose of examining into and reporting upon the case, recommended 
that no one be held responsible for the damage inflicted. 

Held^ that the repairs having been accomplished, payment of tlie 
bill should be made by the disbursing officer of the Department of 
Commerce upon presentation of proper vouchers, and that the 
amount could not be charged to or paid from fimds of the Quarter- 
master Corps, as such repairs, subserving no purpose for which the 
funds were appropriated, would be without consideration, and as 
there was no appropriation of the Quartermaster Corps available for 
such purpose. 6 Comp. Dec, 74. 

(Comp. Geo. E. Downey, Sept. 18, 1914; see also decision of Sept, 
22. 1914, in the matter of replacing a beacon light destroyed by a tug 
of the Engineer Department.) 



TB.AVEL ALLOWANCES: Charge for space reserved iu pursviance of 
transportation request. 

A discharged soldier by means of a Government transportation 
request secured passage on a steamer en route to point of enlistment. 
About two hours before the steamer sailed he returned his ticket and 
canceled the passage. On account of the lateness in canceling the 
passage, it was impossible to resell the berth, although the steamer 
was booked full, and passengers had been turned aAvay. A rule of 
the company provided that — 

" When tickets are presented for redemption less than 48 hours in 
advance of sailing on crowded ships, and the accommodations so 
released can not be resold, a forfeiture of 50 per cent will be exacted. 
Such ticket may be refunded on this basis, or will be made valid for 
later sailings upon additional payment of 50 per cent of the regular 
passage rate." 

The regular passage was $50, and the company presented its bill 
for $25 in accordance with said rule. 

Held., that the amount claimed was not damages for breach of 
contract, but was a fixed charge for space reserved and held for the 
soldier's occupancy, and w\as, in fact, for a service rendered, and that 
the amount should be allowed. Held further, that if transportation 
slioiild thereafter be furnished to the soldier the amount of said 
allowance should be deducted therefrom. 

(Comp. Geo. E. Downey, Sept. 28, 1914.) 



THAVELING EXPENSES: Of military attaches abroad; payment of; 
appropriation. 

Appropriation was made by the act of March 2, 1913 (37 Stat., 
704). under the heading "Contingencies, Military Information Sec- 
tion, General Staff" for "the actual and necessary traveling expenses 
incurred by military attaches abroad under orders from the Secre- 



436 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

tary of War, to be expended under the direction of the Secretary of 
War." 

The Army act of April 27, 1914 (Pub. Xo. 91, p. 1), contained an 
identical provision. 

Held,, that if a military attache abroad under orders from the 
Secretary of War was compelled to travel in pursuance of his duty, 
his actual and necessary expenses incident to said travel wei-e pay- 
able from the appropriation named ; and that he was not entitled to 
the mileage allovrance of 7 cents per mile for such travel as provided 
by the act of June 12, 1906 (34 Stat., 247), for officers of the Army 
traveling under orders without troops. 

(Comp. Geo. E, Downey, Sept. 14, 1914, 21 Comp. Dec, 148.) 



DECISIONS OF THE COXJETS. 

(Digests prepared in the office of tlie Judge Advocate General.) 

CONTRACTS: Supplemental; liquidated damages; waiver. 

A contract provided for the construction for the Government 
v>'ithin seven months from the date of its approval of a pumping 
plant for a dry dock at the New York Navy Yard. After a portion 
of the work had been done, the Government decided to connect said 
dry dock with another and to build a single pumping plant for both. 
A supplemental contract was entered into whereby the contractor 
agreed, for an additional sum, to furnish all material and labor neces- 
sary for carrying out the changes in and additions to the plant 
originally contracted for, and the time of completion was extended. 
Thereafter the progress of the work was delayed, without fault of 
the contractor, by a controversy as to the proper method of construct- 
ing a portion of the work. After the date fixed for the completion of 
the work by the supplemental contract, two other supplemental con- 
tracts were entered into covering additional work and changes found 
necessary in the original plans, which changes caused the con- 
troversy. In neither of said supplemental contracts was mention 
made of date of completion or of former delays. No delays were 
chargeable to the contractor until some time after the execution of 
the last supplemental contract, when delays occurred through the 
fault of a subcontractor. After the completion and acceptance of 
the work settlement was made by deducting for 240 days' delay at 
the rate of $25 per day, stipulated in the original contract as liqui- 
dated damages. 

Held,, that while reasonable liquidated damages for delays were 
not to be regarded as penalties, yet where contracts provided for 
such damages, if one party prevented the other from completing 
the work in time, liquidated damages could not be insisted upon, 
even thou.gh the subsequent delay Avas due to the fault of the c<m- 
tractor, and that where the original Government contract provided 
for liquidated damages for delay beyond a specified date, and the 
supplemental contract contained no fixed rule for the time of com- 
pletion, the Government was limited in its recovery to actual dam- 
ages sustained by reason of the delay. 
^ {United States v. United Engineering & Contracting Company,, 
May 8, 1914, 234 U. S., 236.) 



DIGEST OF OPlNIOi^S OF THE JUDGE ADVOCATE GENEEAL. 437 

LIVING EXPENSES: Clerk of the Quartermaster Corps on temporary 
duty; Army Begulations. 

A clerk of the Quartermaster Corps regularly stationed at Fort 
Riley, Kans., proceeded under orders to San Antonio, Tex., for tem- 
porary duty with the division to be formed there. On the date on 
which he arrived at his destination Army Regulation No. 744 of 1910 
was in force, which provided that reimbursement for actual expenses, 
when traveling under orders, would be allowed to civilian clerks in 
the em]^ioy of any branch of the military service, among them the 
following : 

" Cost of meals, and lodgings including baths, tips, and laundry 
w^ork, not to exceed $4.50 a day while on duty at places designated in 
orders for the performance of temporary duty." 

Thereafter the Secretary of War approved a recommendation that 
the reimbursement mentioned be allow-ed for not more than 30 days, 
and that that period be made the limit of time for w hich such reim- 
bursement should be paid to those who might thereafter be assigned 
to temporary dut}^ at a place other than their permanent station, 
wdiatever the length of time of temporary service. This order was 
not carried into t^ie Army Regulations, but notice thereof was com- 
municated to the clerk before the expiration of the first 30 days of his 
assignment to duty at San Antonio. 

Ileld^ that the allowance, resting on regulation only, could be w ith- 
drawn by a modification of the regulation ; that in making or chang- 
ing Army Regulations the President miglit legally act through the 
Secretary of War; that the fixing of 30 days as the limit of tem- 
porary duty in said case was wholly within the discretion of said 
Secretary of War; and that the clerk had no legal claim for reim- 
bursement for living expenses incurred beyond said period of 30 
days. 

{Maxioell v. United States, Ct. Cls. No. 31246, Feb. 9, 1914.) 



NAVIGABLE "WATEES: Riparian rights; paramount authority of the 
United States; harbor Hues. 

A riparian owner in the State of Virginia, where a fee-simple title 
runs to low-W'ater mark in the bed of a navigable river, had con- 
structed a wharf for shipping lumber out to a harbor line established 
by harbor commisioners under authority of a statute of the State. 
After the construction of said wharf the same harbor line w-as 
adopted by the Secretary of War on behalf of the United States, 
under authority of the act of August 11, 1888 (25 Stat., 425), as the 
National Government's limit of navigable water. Thereafter the 
Secretary of War established a new navigation or harbor line which 
brought a portion of said structures within the navigable area of 
the river, and the owner w^as notified of the change and of the neces- 
sity for the removal of such structures. Later the Secretary of War, 
assuming that the owner had taken the risk of a change in the line of 
navigation when it located its structures, abandoned condemnation 
proceedings which had theretofore been instituted and notified the 
owner of his intention to remove the portion of the structures which 
fell within the new line of navigation. A suit for an injunction 
against such proceedings w^as thereupon commenced. 



438 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Held^ that all State laws and regulations with respect to navigable 
water, and all rights acquired under them, were subject to the para- 
mount right of the United States to appropriate any portion of the 
submerged soil for the purposes of navigation. 

Held further^ that a harbor line established by the Secretary of 
War, under authority conferred by Congress, was subject to change 
by the same authority, and while a riparian owner might lawfully 
construct piers and docks to the established line, in doing so he takes 
the risk of such change if required for the improvement of naviga- 
tion, which was not a matter for judicial inquiry, and that the re- 
moval by the Government of so much of his structures ae extended 
beyond the new line was not a taking of his property for which he 
was entitled to compensation. 

{Garrison v. GreenJeaf Johnson Lumhcr Co.. U. S. C. C. A.. June 
1, 191^, 215 Fed. Kep., 676.) 



BULLETIN 50. 

Bulletin 1 WAK DEPARTMENT, 

No. 50. J Washington, November llj., 1911}. 

The following digest of opinions of the Judge Advocate General of 
the Army for the month of October, 1911, and of certain decisions of 
the Comptroller of the Treasury, is published for the information of 
the service in general. 
[2227116, A. G. O.] 
By order of the Secretary or War : 

W. W. WOTHERSPOON, 
Major General^ Chief of Staff. 
Official : 

H. P. McCAIN, 

The Adjutant General. 



OPIMONS OF THE JUDGE ADVOCATE GElMERAL. 

APPEOPRIATIONS : Special and general; limit on expenditures for hos- 
pitals. 

In appropriating for " construction and repair of hospitals at mili- 
tary posts already established and occupied" in the Urgent Defi- 
ciency Act of June 25, 1910 (36 Stat., 664), a proviso was added that 

" No more than sixtj^ thousand dollars shall be expended in the 
erection of a hospital at the recruit depot at Angel Island, San 
Francisco." 

The full amount authorized had been expended in the erection of 
such a building, but it was stated that the partitions of the annex 
were incomplete, with no finish of any kind, and that the main build- 
ing lacked painting and interior finish. An allotment was desired 
from the appropriation for the construction and repair of hospitals 
for the purpose of completing said work. 

Ileld^ that the appropriation for the construction of the hospital 
was specific and was the only one that could be applied to the object 
named, and that it would not be legal to expend additional funds for 
the completion of the building from any other appropriation. 
(5-061, J. A. G., Oct. 16, 1914.) 



BIDS: For purchase of supplies; alteration of proposal after opening of 
bids. 

A company, in response to an advertisement for proposals for fur- 
nishing stationery, wrapping paper, etc., during the fiscal year 1915, 
submitted a proposal which, as to all but one item, was qualifixed by 

439 



440 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the condition that the bids should apply only to shipments made 
within sixty days from September 11, 1914, the reason given being 
that the European war had so misettled the paper market that ar- 
rangements could not be made with paper mills for the delivery of 
paper for the entire year. Subsequently to the opening of the bids 
the company withdrew said condition. The prices bid by said com- 
pany were lower than those of other competitors. 

Held., that the bid was not responsive to the advertisement, which 
called for the furnishing of such supplies as might be ordered from 
time to time during the fiscal year, and that the condition named in 
the bid could not be regarded as a slight failure to conform to the 
terms of the advertisement, which, under paragraph 546, Army 
Regulations. 1913, need not necessarily lead to the rejection of a 
bid, and that the bid could not properly be accepted. Held further^ 
that if the other bids were found to be unreasonable, taking into 
consideration the bid in question, such other bids miglit be rejected 
for that reason, and recourse had to an open market purchase, the 
requirements of the law as to advertising having been satisfied. Dig. 
Op. J. A. G. 1912, 311 H. 

(76-260, J. A. G., Oct. 23, 1914.) 



CGNTRACTOIIS: Defaulting; failure to pay laborers and material men; 
withholding payment by the United States. 

A contractor for the construction of certain roads, walks, and a 
storage tank at Fort Sill, Okla., failed to make settlement with ma- 
terial men for material furnished in connection Avith the execution 
of the work, and the surety on his bond given for the protection of 
laborers and material men, pursuant to the Act of August 13, 1894 
(28 Stat., 278), as amended by the Act of February 24, 1905 (33 
Stat., 811), requested that some arrangement be made with respect 
to the unpaid balance under the contract for his protection as 
against his liability to laborers and material men. 

Ileld^ that v4iile the Government was under no strict legal obliga- 
tion to defer payments to a contractor after they had become due, 
in the interest of laborers and material men who were protected by 
the contractor's bond, yet it was under an equitable obligation to see 
that such laborers and material men were paid {Ilermingsen v. 
United States Fidelity & Guarmity Convpany^ 208 U. S., 404), and 
that in recognition of such obligation it should withhold payments 
to the contractor until the parties interested are given a reasonable 
opportunit}^, in due course of procedure, to secure the appointment 
of a receiver or trustee for receiving the moneys due. 

(76-742, J. A. G., Sept. 23 and Oct. 17, 1914.) 



DESERTION: Forfeiture of pay and allowances accrued under a prior en- 
listment; rations account. 

A soldier was discharged with an amount standing due to him 
on his ration account while in hospital. He immediately reenlisted, 
{)nd deserted without having received the amount due. 

Ileld^ that while a soldier deserting the service forfeits all pay 
and allowances due at the date of desertion by reason of the viola- 



DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 441 

tion of his enlistment contract, the rule does not extend to amounts 
due under an enlistment prior to that from which he deserted, which 
enlistment had been closed by an honorable discharge, and that the 
amount due the soldier from his previous enlistment was not for- 
feited by the desertion. 

(72-532.3, J. A. G., Oct. 8, 1814.) 



EVIDENCE: Coinpelling' a person to give evidence against himself. 

It was proposed to order an officer to a certain place for identifi- 
cation by civilian w^itnesses in relation to charges which were pend- 
ing against said officer. 

Ildd., that such an order would not be in violation of the officer's 
privelege not to be required to give evidence against himself, as it 
calls for no testimonial communications from him. {Holt v. Urdtecl 
States, 218 U. S., 245.) 

Held further, that the absence of such officer from his command 
in obedience to the order would not be considered as such a detach- 
ment from his organization as would bring into operation the pen- 
alty clause of the provisions in the Act of August 24, 1912 (37 Stat., 
571), with relation to the forfeiture of the pay of the superior officer 
by whose order or permission an officer should be detached, in viola- 
tion of said act. 

(6-124, J. A. G., Oct. 22, 1914.) 



EXHIBITIONS: Exhibiting Government horses at horse shows; attending 
by organization. 

A request was made that the War Department exhibit certain 
cavalry and artillery horses at the annual show of the Northwest 
Live Stock Association, to be held at'Lewiston, Idaho, in December, 
1914. The Army Appropriation Act of April 27, 1914 (Pub. 91, 
p. 15), in appropriating for horses for the Army, contains the pro- 
viso: 

" That hereafter no part of this or any other appropriation shall 
l)e expended for defraying expenses of officers, enlisted men, or 
horses in attending or taking part in horse shows or horse races; 
but nothing in this proviso shall be held to apply to the officers, 
enlisted men, and horses of any troop, battery, or company which 
shall, by order or permission of the Secretary of War, and within the 
limits of the United States, attend any horse show or any State, 
county, or municipal fair, celebration, or exhibition." 

Held, that horses belonging to organizations could be sent to such 
exhibitions at Government expense only when the organization to 
which they belonged was ordered or permitted to attend, and that 
the request in its limited form could not be complied with. Opin. 
J. A. G. (94-231, June 2, 1914.) 

(94-231, J. A. G., Oct. 19, 1914.) 



EXPOSITION: Expenses of officers and enlisted men with their mounts 
attending a mounted competition. 

It was proposed to select three teams, one from each of as many 
different Army posts, composed of six officers and twenty-four en- 



442 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

listed men each, with their mounts, for participation in a mounted 
competition at the Panama-Pacific International Exposition, and 
the question arose as to whether the proposed action would be in 
A'ioUition of the proviso contained in the Army Appropriation Act 
of April 27, 1914 (Pub. No. 91, p. 15), forbidding the expenditure 
of appropriations to defray the expenses of officers or enlisted men 
or horses " in attending or taking part in horse shows or horse races." 
The act contained a saving clause excepting from the above provi- 
sion the attendance of officers, enlisted men, and horses of any troop, 
batter}^, or company attending under orders any horse show or any 
State, county, or municipal fair celebration or exhibition. 

Ileld^ that the participation in the events mentioned of the teams 
selected in the manner proposed could not be considered as an organi- 
zational participation within the meaning of the saving clause of said 
pro^•ision, but that the exposition in question should not be regarded 
as a horse show within the meaning of the proviso, and for that rea- 
son there would be no legal objection to authorizing the participa- 
tion of the three teams as proposed in such competitive exhibitions, it 
being understood that the mounts referred to were the authorized 
mounts of the officers. 

(94-231, J. A. G., Oct. 28, 1914.) 



FUNERAL EXPENSES: Disposition of remains of Army nurses dying 
in the service. 

The Sundry Civil Act of August 1, 1914 (Pub. No. 161, p. 25), ap- 
propriates, under the head of " Disposition of remains of officers, 
soldiers, civilian employees, and so forth," for the expenses of inter- 
ment of the remains of officers and enlisted men of the Army on the 
active list and of the remains of civilian employees of the Army in 
the employ of the AVar Department who had died abroad or while on 
duty in the field or at any of the railitarv posts within the limits of 
the 'United States. 

Ileld^ that the Army Nurse Corps having, by Section 19 of the Act 
of February 2, 1901 (31 Stat., 753), been made a part of the Army, 
nurses came within the provisions of the Sundry Civil Act for the 
disposition of the remains of officers, soldiers, and civilian employees 
in the military service, and that the remains of Army nurses who 
died in the service might be disposed of as in said Act provided. 
Opin. J. A. 0., November 18, 1901, C. 11616. 

(6-227.2, J. A. G., Oct. 8, 1914.) 



HEAT AND LIGHT : Furnishing' officer's allowance to his family at a 
place other than his station. ^ 

An officer on temporary duty on the Mexican border, witli perma- 
nent station at San Francisco, CaL, desired to have his fuel allow- 
ance during such temporary duty issued to his family, occupying 
public quarters at Fort D. A. Russell, Wyo., upon the usual proof 
that he had not drawn his fuel allowance at his temporary station. 

Held., following tlie decision of the ComptroHer of the Treasury in 
the matter of the payment for heat and light furnished to the quar- 



DIGEST OF OPINIOI'TS OF THE JUDGE ADVOCATE GENERAL. 443 

ters of officers, that fuel on account of an Oiiicer''s allowance for heat- 
ing his quarters could not be issued to his family at a place other than 
his permanent or temporar}^ station, and that the proposed issues 
should not be authorized. 

(72-311, J. A. G., Oct. 14, 1914.) 

Note, — A letter from the Comptroller to the Secretary of the 
Treasury, to whom the above decision was rendered, advised the 
Secretary that the operation of his decision would be suspended 
until December 1, 1914, in view of the investigation being conducted 
by the War Department for the purpose of determining the value of 
the allowances for light, such determination to be followed by an 
amendment of paragraph 1057, Army Regulations, 1913. 



IjSTSANE PEKSONS: Shipment and disposition of effects of insane soldiers 
after discharge. 

An enlisted man who had becom.e insane was removed from his 
station at Fort St. Michael, Alaska, to the Letterman General Hos- 
pital, San Francisco, Cal., and tlience to the Government Hospital 
for the Insane, Washington, D. C, at which place he was discharged 
from the Army, but still remained an inmate of said institution. 
His household goods were retained at his former station the soldier 
having been unable to give any instructions in regard thereto. 

Held, that the law did not authorize the shipment of any of the 
soldier's effects at Government expense after discharge, except such 
personal baggage as might be transported as his usual allowance on 
being returned to the place of enlistment on discharge, and that no 
authority existed for transporting the soldier's household effects 
from his former station to San Francisco, there to be retained in 
storage until he should be able to give direction as to their disposi- 
tion. Held further, that, in view of the fact that if such property 
were left in storage indefinitely it would be subject to loss or deterio- 
ration, and in the absence of a duly appointed guardian, the Gov- 
ernment might make such disposition thereof, without public ex- 
pense, as might seem best for the interests of the soldier. 

(44-000, J. A. G., Oct. 1, 1914.) 



MILITIA: Eligibility for service in the organized; pensions for physical 
disability. 

Section 1 of the Act of Januarv 21, 1903 (32 Stat., 775), provided 
that: 

" The militia shall consist of every able-bodied male citizen of the 
respective States, Territories, and the District of Columbia, and 
every able-bodied male of foreign birth who 1 as declared his inten- 
tion* to become a citizen, who is more than eighteen and less than 
forty-five years of age. * * *." 

Held, that Congress not having defined the term "able-bodied" 
and not having fixed any standardof physical qualifications for entry 
into the organized militia other than is found in said expression, the 
determination of the state of fitness for membership in such militia 
rested with the recruiting officers of the States, acting under State 



444 DIGEST OF OPINIOlSrS OF THE JUDGE ADVOCATE GENEEAL. 

laws. Held further^ that the receipt of a pension for physical dis- 
ability incurred in the military service of the United States did not 
constitute a legal disability for membership in the organized militia, 
but that the Secretary of War might announce the allowance of such 
a pension as a disqualification for the receipt of pay, etc., from appro- 
priations authorized by Section 16G1, Revised Statutes, for the 
militia. 

(58-230, J. A. G., Oct. 14, 1914.) 



EEPAIRS: Of property belonging to officers and enlisted men; use of pri- 
vate property by the United States. 

A request for an allotment of appropriation to install a hot w^ater 
bath apparatus for the command at Texas City, Tex., was disap- 
proved by the Secretary of War, and the officers and enlisted men 
installed such fixtures at their own expense. A request was then 
made for authority to expend $600 for the repair of such fixtures 
and additional funds for new installations. 

Held., that wiiile, as a general rule, repairs to private property 
used by the Government could not be made at Government expense 
nnless the contract of rental provided for such repairs as a part of 
the consideration, the end desired in the present case might be ac- 
complished by an agreement with the owners for the bailment of the 
property to the United States for a suitable period of time in con- 
sideration of its repair. 

(5-003, J. A. G., Oct. 21, 1914.) 



SALES: Disposition of proceeds of sale of manure from ambulance company; 
company fund. 

The proceeds from the private sale of manure from an ambulance 
company at Galveston, Tex., amounted to from $25 to $30 per month. 
It was claimed that the proceeds accruing from the condemnation 
and public sale of the manure would not compensate for the incon- 
venience, and it was desired to know whether the same might be 
sold at private sale and the proceeds credited to the company fund. 

Held^ that Section 3G1S, Revised Statutes, required that the pro- 
ceeds of the sale of old material, condemned stores and supplies, or 
public property of anj^ kind, regardless of the method of sale, should 
be deposited and covered into the Treasury as miscellaneous receipts 
on account of proceeds of Government property (15 Ops. Atty. Gen., 
322) ; and that there was no authority for crediting the amount re- 
ceived from the sale of manure from the ambulance company to the 
company fund. 

(80-130, J. A. G., Oct. 7, 1914.) 



TBAVEL ALLOWANCES: Excess of cost of 'transportation by a longer 
route. 

A soldier who had enlisted at Jefferson Barracks, Mo., was dis- 
charged at Brownsville, Tex., and elected to take transportation to 
Baldwin, Miss., a distance not exceeding that from the place of dis- 
charge to place of his enlistment. He w^as furnished a transportation 



DIGEST C=F OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 445 

request for transportation to Baldwin, Miss., by way of Mobile, Ala., 
at a cost of $8.32 above the cost of such transportation from Browns- 
ville direct to Baldwin. 

Held, that the additional expense was unauthorized, and that the 
officer issuing the request could not be released from his responsibility 
by the War Department but that it would be necessary for him to 
seek such relief from Congress. 

(94-300, J. A. a, Oct. 10, 1914.) 



TEAVEIi EXPENSES: Of officers of the Army abroad; military attaches 
and military observers. 

An officer of the Army was assigned to special duty at London, 
England, under the direction of the United States Ambassador, in 
connection with the relief of stranded Americans in England, when 
he was ordered by the Assistant Secretary of War through the United 
States Ambassador at Paris, France, to act as military observer. In 
pursuance of orders, he proceeded from London, England, to Paris, 
France, and thence to Neufchatel, and returned to Paris. He pre- 
sented a bill for his actual expenses of travel, including hire of an 
automobile for a portion of his travel, rendered necessary by the fact 
that on account of the war trains did not proceed as far as he desired 
to travel. 

Held, that while as a military observer, he was attached to the 
American Embassy at Paris, for purposes of official recognition he 
could not properly be regarded as a military attache within the 
meaning of the provision of the Army Appropriation Act of April 
27, 1914 (Pub. No. 91, p. 1), relative to the payment of "actual and 
necessary traveling expenses incurred by military attaches abroad 
under orders from the Secretary of War," and that he was entitled 
only to mileage for his travel and not to actual expenses. 17 Comp. 
Dec, 204. 

(94-210; J. A. G., Oct. 29, 1914.) 



VEHICLES: Passenger-carrying; motor cycles for the Signal Corps. 

Section 5 of the Legislative, Executive, and Judicial Act of July 
16, 1914 (Pub. No. 127, p. 61), provides that— 

" No appropriation made in this or any other act shall be available 
for the purchase of any motor-propelled or horse-drawn passenger- 
carrying vehicle for the service of any of the Executive Departments 
or other Government establishments, or any branch of tlje Govern- 
ment service, unless specific authority is given therefor, * * *." 

Opinion was desired as to whether motor cycles purchased by the 
Signal Corps for use by telegraph linemen, repair men and orderlies 
came within the above statute. Said motor cycles were equipped for 
carrying linemen or repair men and their tools needed for the main- 
tenance of lines in the field, and for the use of orderlies in carrying 
official messages, and were not equipped for carrying others than 
those engaged in the services named. 

Held, that, considering the purposes for which the motor cycles 
were to be used, the same should not be regarded as passenger- 
carrying vehicles, within the meaning of the statute in question. 

(94-012, J. A. G., Oct. 1, 1914.) 



446 DIGEST OF OPINIOlSrS OF THE JUDGE ADVOCATE GENERAL. 

VOLUNTARY SEHVICES: Expense of returniug soldiers absent without 
leave to tlieir conimauds. 

A member of the police force at Houston, Tex., asked reimburse- 
ment for expenses consising of cur fare in returning to their command 
two recruits of the TAventy-eighth Infantry who were appreliended 
by the police of said city while absent without leave. They were not 
charged with desertion, but were tried for and convicted of absence 
without leave. 

Held., that there was no lav/ providing for the payment of expenses 
incurred by private parties in returning soldiers to their proper 
commands, except in the case of deserters, and, there being no express 
agreeriient to pay such expenses in the present case, nor any facts 
shown from which such an agreement might be implied, the service 
must be regarded as purely voluntary, and the claim should not be 
paid, following the rule in regard to the voluntary return of lost 
property. 5 Comp. Dec, 37 ; 11 Id., 741 ; Op. J. A. G., Bui. 43, W. D., 
1914 p.' 9. 

(20-206, J. A. G., Oct. 22, 1914.) 



DECISIONS OF THE COMPTEOLLEE, OP THE TEEASUEY. 
(Digests prepared in the office of tlie Judge Advocate General.) 

ABSENCE: From active duty on account of confinement; forfeitui'e of pay. 

The Army Appropriation Act of April 27, 1914 (Pub. No. 91, p. 3), 
contains the following provisions: 

^'"Provided, That hereafter no officer or enlisted man in active 
service who shall be absent from dut}' on account of disease resulting 
from his own intemperate use of drugs or alcoholic liquors or other 
misconduct shall receive pay for the period of such absence, the time 
so absent and the cause thereof to be ascertained under such procedure 
and regulations as may be prescribed by the Secretary of War: 
Provided further, That an enlistment shall not be regarded as com- 
plete until the soldier shall have made good any time in excess of one 
day lost by unauthorized absences, or on accoimt of disease resulting 
from his own intemperate use of drugs or alcoholic liquors or other 
misconduct, or while in confinement awaiting trial or disposition of 
his case if the trial results in conviction, or while in confinement under 
sentence * * *." 

On submission for a construction of said statute by the Auditor 
for the War Department, 

Held, t!iat in order to work a forfeiture of pay under the statute 
the absence must be on account of disease resulting from the causes 
stated in the first proviso, and that any absence from active duty 
with his organization or at his usual post of duty of an officer or 
enlisted man caused by confinement while awaiting trial, or under- 
going punishment for any cause, would not result in loss of pay under 
the terms of the second proviso. 20 Gomji. Dec, 69. 

(Comp. Geo. E. Downey, Oct. 10, 1914.) 



HEAT AND LIGHT: Light allowance to officers of the Revenue Cutter 
Service; Army Regulations. 

Certain officers of the United States lievenue Cutter Service Avho 
by law were entitled to the same light allowances as officers of corre- 



DIGEST OF OPIN^IONS OF THE JUDGE ADVOCATE GENERAL. 447 

sponcling rank of the Army, presented vouchers for the cost of elec- 
ti'icit}' used b}' them in lighting their quarters, based upon the arbi- 
trarj' allowances prescribed in paragraph 1057, Army Regulations, 
1913, as amended by the Act of August 11, 1914. OiRcers of the 
Army were entitled' by the Act of March 2, 1907 (84 Stats., 1167), 
to have provided them at Government expense the light actually nec- 
essary for their authorized allowance of quarters. The money values 
of the allowances prescribed by said regulation for lighting one room 
for one month between the 1st of September and the 30th of April 
at the rates of 85c. per thousand cubic feet of gas and 10c. per KWH. 
of electricity amounted to $1.28 for gas and $1.70 for electricity, and 
the same rates applied proportionately for the number of rooms 
actually occupied. 

II eld .^ that an inspection of the said rates in comparison w'itli the 
known cor5t of lighting quarters in Y\"ashington, D. C, disclosed the 
fact that the}^ were unreasonable, and in excess of the quantities 
actually necessary, and that the i^egulations prescribing such allow- 
ances were, therefore, in conflict wdth the law, and invalid. Held 
further^ that the officers should pay the bills and present vouchers or 
claims for reimbursement to the extent of the cost of the quantities 
Tictuallv necessary to light their authorized quarters as occupied. 

(Comp. Geo. E. Downey, Oct. 10, 1914.) 



TS-ANSPOIITATION: Hire of automobiles for officer traveling in mileage 
status. 

An officer at Fort Sam Houston, Tex., was ordered to proceed " to 
Brownsville, Tex., on duty in connection w ith Mexican Federal pris- 
oners and border patrol duty ; " and, upon completion of this duty, 
to return to Fort Sam Houston. It was the officer's duty under the 
orders to inspect patrol stations along the Rio Grande River from 
Brownsville to Rio Grande City. Upon the officer's arrival at 
Brownsville it was found that recent storms had so damaged the 
roads along this route that he was obliged to hire and use an auto- 
mobile for the trip, at an expense of $7.50. 

II eld ^ that the officer's travel orders contemplated travel beyond 
Brownsville, namely, to the patrol stations along the Rio Grande 
River from Brownsville to Rio Grande City; that being in a mileage 
status he was entitled under the act of June 12, 1906 (34 Stat., 246), 
to seven cents per mile traveled and no more; that transportation 
which can be furnished an officer on a mileage status and charged 
against his mileage account is limited to transportation over estab- 
lished lines of common carriers; and that the expense of hire of 
extraordinary means of transportation, such as automobiles, is not 
authorized by law. (18 Comp. Dec, 851 : 20 Id., 485.) 

(Comp. Geo. E. Downey, Oct. 31, 1914.) 



TBANSPORTATION : Deduction on account of loss occurring in a prior 
shipment; delay in ascertaining the loss. 

In settling an account of a transportation company, the Auditor 
for the War Department deducted $14.13 as the cost of 108. pair of 
stockings, and freight thereon, being the shortage discovered in a 
prior shipment for the GoA'ernment by the same company. The bill 



448 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

of lading covering the former shipment had been accomplished with- 
out discovery of the shortage, and a copy of the receipt for the deliv- 
ery of the freight was filed with the company. More than two 
months after the bill of lading had been thus accomplished, and on 
opening one of the boxes, the shortage was discovered, and it was 
then found that the box bore evidence of having been tampered with. 

Held, that the receiving officer of the Quartermaster's Department 
should have satisfied himself at the time that the consignment was 
in good order and that he was negligent in not doing so, and that 
it would not be reasonable, after the lapse of such a length of time 
after the bill of lading had been accomplished, to cast upon the rail- 
roati company the burden of showing that no shortage existed. The 
amount deducted was. therefore, allowed. 

(Comp. Geo. E. Downey, Oct. 17, 1914.) 



TRAVELING EXPENSES: Of military attaches going to and returning 
from their posts of duty. 

The Act of xVpril 27, 1914 (Pub. Xo. 91, p. 1), under the head of 
"Contingencies, Military Information Section, General Staff Corps," 
contains an appropriation for the fiscal 3- ear 1915 for "the actual 
and necessary traveling expenses incurred by military attaches 
abroad under orders from the Secretary of War to be expended 
under the direction of the Secretary of War, * * *.'' 

Ilelrl^ that the Act created an exception to the regular mileage law 
for officers of the Army of June 12, 1906 (34 Stat.,^246), in faVor of 
military attaches abroad traveling under orders from the Secretary 
of War, but that it had no application until the officer detailed as 
military attache reached his post of duty abroad, or after he should 
be relieved from duty as such attache, and that until he reached his 
post of duty and after his relief therefrom his right to travel allow- 
ances was governed by the general mileage law. 

(Comp. Geo. E. Downey, Oct. 21, 1914.) 



TRAVELING EXPENSES: Expense incurred after return from journey. 

A voucher was presented for reimbursement of traveling expenses 
of an officer of the Eevenue Cutter Service, which included laundry 
and pressing of clothes after his return to his headquarters, and 
while he was no longer in a travel status. It was stated that the 
cause of the expense arose while he was traveling and that the work 
Avas actually postponed until his return because it could then be done 
at less cost than while on the road. 

Held, that while there was much room to doubt the propriety or 
wisdom, not to say legality, of allowing bills for laundry and pressing 
clothes either as transportation or subsistence incident to travel imder 
any circumstances, they had been allowed on the assumption that 
such expenses while in a travel status were greater than while the 
party was at home or at his regular station, but that in the present 
case, the work not having been done while the officer was on the 
road, l)ut at the regular station and while he was not in a travel 
status, the claim should be disallowed. The decision in 18 Comp. 
Dec, 522, was disapproved in part. 

(Comp. Geo. E. Downey. Oct. 12, 1914.) 



BULLETIN 52. 

Bm^LETiN 1 WAR DEPARTMENT, 

No. 52. J Washington, December H, lOlJf.. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of November, 1914, and of certain deci- 
sions of the Comptroller of the Treasury, is published for the infor- 
mation of the service in general. 
[2194536 C— A. G. O."] 

By order or the Secretary of War : 

H. L. SCOTT, 

Brigadier General, Chief of Staff. 
Official : 

H. P. MoCATN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

CONTHACTS: For replacement of automobile tires failing to make guaran- 
teed mileage. 

The question arose as to the legality of a proposed agreement with 
the Goodyear Tire & Rubber Company for the replacement of defec- 
tive automobile tires with new ones, the Government to pay, upon 
the delivery of the new tires, a sum equal to the value of the mileage 
obtained from the old ones, based upon a six thousand mile guaranty, 
the original tires to be returned to the company. 

Held., that while in a transaction involving the exchange of worn- 
out Government property for new articles, the consideration allowed 
for the old property must be covered into the Treasury as miscella- 
neous receipts and the full value of the new supplies charged to the 
appropriation therefor, the proposed plan would not come within 
that requirement, the old property not being turned in on the basis 
of its value but in pursuance of an agreement of warranty ; that such 
a plan appeared to be a sound business arrangement, which would 
result in economy to the Government, and no legal objection could 
be perceived to its adoption. 

(76-743, J. A. G., Nov. 10, 1914.) 



COUBTS-MAIITIAL : Member of court as witness for the prosecution. 

It was provided by the act of March 2, 1913 (37 Stat., 722), that 
" The commanding officer of a territorial * * * department 

* * * may appoint general courts-martial whenever necessary; 

* * * and no officer shall be eligible to sit as a member of such 
court when he is the accuser, or a witness for the prosecution." 

93668°— 17 29 ' 449 



450 DIGEST OF OPINIOXS OF THE JUDGE ADVOCATE GEISTERAL. 

After the accused, an enlisted man, bad 1)een arraigned before a 
general court-martial and his pleas made of record, the judge advo- 
cate announced that a certain member of the court was a witness for 
the prosecution. The said member replied that he was " a w itness to 
the first specification to which the accused has plead guilty." There 
being no objection, he remained a member of the court, and was not 
called to testify for the prosecution. 

Held., that as the member neither testified nor qualified as a wit- 
ness against the accused, and that since the only knowledge he was 
presumed to haA^e had concerning the charges related to a specification 
which the accused had removed from the realm of judicial inquiry by 
his plea of giiilty thereto, the said member should not be regarded as 
a witness within the meaning of the statute. 

(30-435, J. A. G., Nov. 10, 1914.) 



COTJRTS-MAIITIAL : Eligibility of retired officer on active staff duty to 
serve as summary court-martial. 

A lieutenant, U. S. A., retired, assigned to active duty and directed 
to take charge of property and funds pertaining to the Quarter- 
master Corps at Fort Logan H. Boots, Arkansas, where 'there were 
present, in addition to himself, one officer of the Medical Reserve 
Corps and ten enlisted men, requested that the department com- 
mander detail him as summary court-martial. Section 1255, Eevised 
Statutes, provides that "officers retired from active service shall be 
withdrawn from command." By the act of April 23, 1904 (33 Stat., 
264), the Secretary of War is authorized to assign retired officers 
of the Armv with their consent to " staff duties not involving service 
with troops." The Act of March 2, 1913 (37 Stat., 722), provides 
that— 

"The commanding officer of a garrison, fort, * * * may ap- 
point summary courts-martial for his command; but such summary 
courts-martial may in any case be appointed by superior authority 
when by the latter deemed desirable: Provided, That when but one 
officer is present with a command he shall be the summary court- 
martial of that command and shall hear and determine cases brought 
before him." 

Held., that under the provisions of Section 1255, Revised Statutes, 
the retired lieutenant could not exercise command; that he could not 
be deemed to be present with the command in the sense of the Act of 
March 2, 1913, in view of the fact that under the provisions of the 
Act of April 23, 1904, he was not permitted to perform services with 
troops, and that therefore he was not competent to act as summary 
court-martial, nor did he have authority to appoint a summary 
court-martial. Held further^ That it was within the power of the 
commanding general to appoint the medical reserve officer as a sum- 
marv court-martial. 

(30-730, J. A. G., Nov. 12, 1914.) 



DISCHARGES: Of enlisted men; when staff officers may sign. 

The question arose as to whether discharges of enlisted men of the 
Hospital Corps could be signed by a field officer of the Medical (V)rps 
when one was present, in view of the recjuirements of the 4th Article 



DIGEST OF OPIISMONS OF THE JUDGE ADVOCATE GENERAL. 451 

of War that " No enlisted man, duly sworn, shall be discharged from 
the service without a discharge in writing, signed by a field officer of 
the regiment to which he belongs, or hj the com.manding officer, 
when no field officer is present; " and of paragraph 147, Army Regu- 
lations, which provides that "A soldier on his discharge from the 
service, will be given a certificate of discharge sig-ned by a field 
officer of his regiment or corps, or by the commanding officer when no 
field officer is present." 

Neid, that the term " regiment " in the 4th Article of War should 
be interpreted " regiment or corps " ; that the term " field officer," 
according to lexicogi-aphers, denotes rank only, and not duty, signi- 
fying ''a colonel, lieutenant colonel, or major"; and that therefore 
whenever an officer of either of such grades of any staff corps or 
department is present with a command, discharges of enlisted men 
of that corps or department may be signed by such officer. 

(28-512, J. A. G., Nov. 23, 1914.) 



HABEAS CORPUS: Expenses of officer and sergeant in producing- prisoner 
in obedience to a writ of habeas corpus issued by a Eederal Court. 

A lieutenant at Fort H. G. Wright, New York, applied to the War 
Department for reimbursement of expenses incurred by himself and 
a sergeant in connection with the return to a writ of habeas corpus 
directed to the said lieutenant by a Federal District Court for the 
production of a soldier then a garrison prisoner whose mother sought 
his discharge from the Army on the ground of minority enlistment. 
The officers of the court held that there was no authority to compel 
the relator to pay the expenses, nor for the Department of Justice 
to pay them. No regular mileage orders were issued, but the lieu- 
tenant's commanding officer directed that he make return to the writ, 
and that the prisoner be taken under guard. 

Heldcf that paragraph 999, Army Regulations, directing that a writ 
of habeccs corpus issued by a United States court or judge shall be 
promptly obeyed is a recognition of the duty of the military to the 
United States Courts; that the lieutenant's custody of the prisoner 
and his duties as respondent in the case resulted from the military 
office he held; that his duty to produce the prisoner in court was, 
therefore, a military duty; that it was a military necessity to place 
the guard over the prisoner during the travel, and that as regular 
military orders might properly have been issued, the lieutenant's 
mileage should be approved and reimbursement made for the neces- 
sarv travel expenses of the sergeant and prisoner. 

(20-114.1, J. A. G., Nov. 17, 1914.) 



OATHS: Authority of postmasters to administer oaths in respect to oiScers' 
. returns of contracts to the Department of the Interior. 

By Section 8 of the Sundry Civil Act of August 24, 1912, it was 
provided that — 

''After June thirtieth, nineteen hundred and tAvelve, postmasters, 
assistant postmasters * * * are required, empowered, and au- 
thorized, when requested, to administer oaths, required by law or 



452 DIGEST OF OPIlSriONS OF THE JUDGE ADVOCATE GENERAL. 

otherwise, to accounts for travel or other expenses against the United 
States, with like force and effect as officers having a seal." 

Ileld^ that the authority of postmasters to administer oaths was 
limited to acconnts for travel or other expenses against the United 
States, and that they were not authorized to administer the oath 
required by Section 3745, Eevised Statutes, relating to officers' returns 
of contracts to the Department of the Interior. 

(64-219.2, J. A. G., Nov. 9, 1914.) 



PRIVATE DEBTS: Officer availing himself of bankruptcy law to escape 
payment of. 

A retired officer of the Army became deeply involved in debt. He 
went into bankruptcy and claimed to have no assets. There were 
evidences to show that he failed to make the proper effort to dis- 
charge his financial obligations; that although he was able to work 
he did nothing to earn money, and was dependent upon his salary of 
$116.87 per month as an officer of the Army. One of his creditors 
expressed the view that the War Department should not approve of 
the officer's method of disposing of his obligations through bank- 
ruptcy proceedings. 

Ileld^ that the discharge of an officer of the Army from his finan- 
cial obligations by a court of bankruptcy does not release him from 
the moral obligation imposed by the military code of honor to pay 
his just debts; that the military code of honor forbids an officer to 
release himself from his just debts in any other manner than by pay- 
ment or adjustment satisfactory to his creditors, and that an officer 
is triable for conduct unbecoming an officer and a gentleman for not 
paying such debts, providing his failure to do so is attended by cir- 
cumstances indicating an intention to evade their payment. 

(74-224, J. A. G., Oct. 31, 1914.) 



RETIBED OEFICERS: Assigned to active duty; authority to command 
enlisted men. 

Section 1255, Revised Statutes, provides that officers retired from 
active service shall be withdrawn from command, and the act of 
April 23, 1904 (33 Stat., 264), provides that— 

'' The Secretary of War may assign retired officers of the Army, 
with their consent, * * * to staff duties not involving service 
with troops." 

Ileld^ that in view of these statutory provisions, a retired officer 
assigned to duty as an acting quartermaster ut a post had no authority 
to exercise command over enlisted men; that Paragraph 19, Army 
Regulations, which provides tliat — 

" * * * any staff' officer, by virtue of his commission, may com- 
mand all enlisted men like other commissioned officers" could not be 
interpreted as contravening the statutes, but that the command of all 
enlisted men referred to should be understood to mean that command 
or authority which officers exercise over enlisted men by virtue of their 
commission when urgent necessity so requires for the preservation of 
good order and militai-y discipline. 

(88-603, J. A. G., Nov. 21, 1914.) 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 453 

SENTENCE: Of military court-martial imposed upon private, Marine 
Corps; remission of unexecuted portion after command transferred 
back to Navy Department. 

A private of the Marine Corps had been tried by a military court- 
martial and given a disciplinary sentence. Before the sentence had 
been fully executed, the command to which the said private belonged 
was transferred back to the jurisdiction of the Navy Department, 
and it was desired that the unexecuted portion of his sentence be re- 
mitted. 

Ileld^ that the established rule of the War Department, recognized 
in paragraph 944, Army Regulations, was that the power of an officer 
to mitigate a sentence ceased when the person passed beyond the of- 
ficer's jurisdiction, and that the principle applied a fortiori where 
the person had passed from the jurisdiction of the War Department. 
Advised that no reason was perceived why the Secretary of the Navy, 
as a representative of the President, could not remit the unexecuted 
portion of the sentence. 

(30-840, J. A. G., Nov. 9, 1914.) 



TAXATION: Of Govei-nment agencies by States; license and fees for 
operation of Government autonaobile. 

Vouchers were presented for the payment to the Commissioner of 
Motor Vehicles for the State of New Jersey of $3.75 for registration 
fee for a Government automobile used at Picatinny Arsenal, New 
Jersey, and $2.00 for chauffeur's license for the operation of said 
automobile. The automobile was used b}^ the War Department ex- 
clusively in the performance of Governmental functions. 

Held., that the vouchers did not represent a proper charge against 
the United States, as the instrumentalities whereby the Federal Gov- 
ernment performs its functions are not subject to State taxation. 
(15 Comp. Dec, 231.) 

(90-125, J. A. G., Nov. 16, 1914.) 



DECisio:srs of the comptroller of the treasury. 

(Digests prepared in the oflice of the Judge Advocate General.) 

CONTR ACTORS: Liability for failure to deliver supplies under agreement 
represented by proposal and award. 

Prior to July 1, 1914, Miller, Clagett & Company, in response to 
advertisement by the Secretary of the Treasury under Act of June 17, 
1910 (36 Stat., 531), submitted proposals for furnishing to the sev- 
eral Government establishments and departments in Washington, 
D. C, as required during the fiscal j^ear 1915, various kinds of gro- 
ceries. About July 1st, they were aw^arded the contract for many of 
the items, and a formal contract and bond were sent them for execu- 
tion, which they failed or refused to execute. During October, the 
Government Hospital for the Insane ordered from them, and they 
delivered, supplies valued at $1,991.89, according to prices in their 
accepted proposal. Thereafter, from the latter part of October, 
owing to the great rise in the price of groceries, they declined to fill 



454 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

most of the orders sent them, necessitating the purchase of such 
needed supplies in the open market. On NovemlL>er 2J:th, they were 
declared in default by the Secretary of the Treausry, and all depart- 
ments, etc.. were instructed to purchase in the open market, by com- 
petitive bid, all needed supplies covered by that Company's pro- 
posal, and to report the excess cost as an indebtedness of said contrac- 
tors. The disbursing clerk of the Government Hospital for the In- 
sane presented to the Comptroller vouchers in favor of Miller, Clagett 
& Company for $1,991.89 representing the purchases mentioned above, 
and inquired whether it should be paid. 

Uehl., That the acceptance of Miller, Clagett & Company's proposal 
and the placing, acceptance and filling of orders thereunder consti- 
tuted, under the circumstances, a good and valid contract, binding 
alike on them and on the (lovernment; that such acts were sufficient 
to indicate that the parties regarded and intended the proposal and 
acceptance to constitute a binding contract; that the acceptance by 
Miller, Clagett & Co., of benefits as of a binding contract effectually 
estopped them to deny that there was a contract in fact ; that conse- 
quently they were liable in damages to the extent of the increased cost 
to the Government of supplies covered by the award to them, and that 
the voucher in question should be withheld until the final determina- 
tion of the contractor's liabilitv to the Government. 

(Comp. Geo. E. Downey, Nov. 30, 1914.) 



PAY AISTD ALLOWANCES: Of soldier dishonorably discharged; forfeiture 
of, during' suspension of sentence. 

A private in the C. A. C. was, upon conviction by a general court- 
martial, sentenced — 

" To be dishonorably discharged the service of the United States, 
forfeiting all pay and allowances due him, and to be confined at 
hard labor at such place as the reviewing authority maj' direct for 
six (6) months." 

On July 13, 1914, the reviewing authority remitted two months of 
the confinement and directed the suspension of tliat portion of the 
sentence imposing dishonorable discharge until the soldier's release 
from confinement unless sooner ordered by competent authority. 
Thereafter, by order of competent authority, the suspension of dis- 
honorable discharge was vacated and the soldier dishonorably dis- 
charged September 23, 1914. The (|uestion was presented wltether 
the soldier was entitled to be paid pay and allowances from July 
14, the date of approval of his sentence, to September 23, the date 
of his discharge. 

Held., that the forfeiture of pay and allowances was an incident 
of the discharge, effective at the time of discharge and not at the 
time of sentence; that its operation was as if the sentence in this 
respect had been forfeiture of pay and allowances due and to hecome 
due., and that therefore pay and allowances due the soldier at the 
time of his dishonorable discharge on Sej)! ember 23, 1914, were not 
payable to the soldier, but were forfeited under the sentence. 

(Comp. Geo. E. Downey, Nov. 20, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 455 

TSANSPOETATION: Of Org'anized Militia in connection with joint en- 
campnient with Hegular Army; deductions under land grant acts. 

The Court of Claims in Alabmna Great Southern Railroad v. 
United States, May 18, 1914, No. 31872, rendered judgment for 
the claimants for $2,447.90, which sum had been deducted by the 
Auditor for the AVar Department from claims of said railroad com- 
pany for the transportation of members of the organized militia of 
Alabama and Mississippi to and from the joint camps of instruction 
of the Regular Army and organized militia held at Chickamauga 
Park, Ga., in the summers of 1908 and 1910, the amount so deducted 
being tlie amount authorized in accordance with the land grant acts 
and subsequent laws and decisions thereon to be deducted for the 
transportation of troops of the United States. The decision of the 
Court of Claims in this case was adverse to the ruling of the Comp- 
troller in 16 Comp. Dec, 70, to the effect that the Organized Militia, 
when traveling for participation in joint encampment with the 
Regular Aniiy is to be regarded as " troops " within the meaning of 
the Statutes relating to land grant deductions from regular rates 
for transportation of troops over certain railroads. The Department 
of Justice decided not to take an appeal to the Supreme Court from 
the judgment of the Court of Claims. 

Held, that while the decision of the Court of Claims is not neces- 
sarily binding on the Comptroller in handling other cases of the 
same kind, yet his office would acquiesce and relieve claimants in 
this class of cases of the necessity of going to the Court of Claims, 
in view of the conclusion of the Department of Justice that the point 
involved ought not to be fu.rther contested and the fact that the 
Court of Claims would doubtless adhere to its decision in other like 
cases presented to it. 

(Comp. Geo. E. Downey, Nov. 20, 1914.) 



BULLETIN 1. 

(Bulletin No. 52 is the last of tbe series for 1914.) 

Bulletin \ WAE DEPARTMENT, 

No. 1. J Washington, January 15^ 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of December, 1914, and of certain deci- 
sions of the Comptroller of the Treasury, is published for the infor- 
mation of the service in general. 
[2246184, A. G. O.] ^ 
By order of the Secretary of War : 

A. L. MILLS, 
Brigadier General^ General Staff Corps, 

Acting Chief of Staff. 
Official: 
H. P. McCAIN, 

The Adjiitant General. 



OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

ARMY RESERVE: Eligibility of soldiers in Army Reserve to be exaraj?ied 
for commission. 

By the Act of July 30, 1892 (27 Stat., 336), it was provided 
"" that all unmarried soldiers under thirty years of age, who are 
citizens of the United States, are phj'sicalW sound, who have served 
honorably not less than two years in the Army, and who have borne 
a good moral character before and after enlistment, may compete 
for promotion under any system authorized b^/^ this Act.'' 

Held, that this provision applied to soldiers in the Army Reserve 
created by the Act of August 24, 1912 (37 Stat., 590), as well as to 
soldiers on duty with their organizations. 

(64-212.1, J. A. G., Dec. 7, 1914.) 



BURIAL EXPENSES: Of indigent ex-Union soldiers dying in the District 
of Columbia. 

An ex-Union soldier died in the District of Columbia in April, 
1914, leaving no property. His Avidow received $1,933.77 from a 
policy of insurance on his life made payable to her. She paid the 
expenses of his burial in Arlington National Cemetery, amounting 
to $113, and afterwards made application for reimbursement of $45 
from the appropriation for ''Burial of Indigent Soldiers" (Sundry 
Civil Act, api)roved June 23, 1913, 38 Stat., 31), which provided 
for the payment, not to exceed $45 in each case, of the expenses for 
450 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 457 

the burial in Arlington National Cemetery, or in the cemeteries of 
the District of Columbia, of .indigent ex-TJnion soldiers, sailors or 
marines dying in the District of Columbia. 

Held -I that life insurance not payable to the estate of the deceased 
is not a part thereof, and that the question as to whether the ex-Union 
soldier died indigent within the meaning of the Act of June 23, 1913, 
was not affected by the receipt of his life insurance by his widow. 

(5-244.1, J. A. G., Dec. 9, 1914.) 



CONTSACTS: Claim of contractor for extras not agreed upon in writing. 

A contractor for the construction and repair of a wharf, aft^r 
completion of the work and receipt of pa3anent of the contract price, 
put in a claim for replacing tw^o new fender piles that had been 
damaged by a government boat in making a landing while the con- 
struction work was in progress, and which w^ere found to be de- 
fective. The quartermaster in charge, upon consideration of the 
terms of the contract providing for the replacing of defective piles 
and specifying that the contractor should cause no inconvenience 
to the landing of government Iwats, required that the piles be re- 
placed as part of the contract. While the contractor demurred that 
it v\-as not within the contract, he acquiesced in the requirement of 
the quartermaster and performed the work without previous writ- 
ten orders, or agreement as to the price, as provided by the contract 
for extras. 

Held., that the decision of the Court of Claims in KiJ/mer v. United 
States (48 Ct. Cls.. 180), was controlling, in which decision the court 
said (p. 194) : 

" In the case of Blpley v. United States, supra, the court held that 
in the absence of some provision in the contract therefor a contractor 
was not required to appeal. That ruling applies to the present case, 
and the final question therefore is, was the decision of the officer 
requiring the work to be done without a written agreement final? 
The contract does not in terms so provide. But it does provide that 
' no allowance shall be made for extra work claimed to have been done 
unless provided for beforehand by a written agreement specifying 
the cost of the same.' Force and effect must be given to this provision, 
especially since there is no other provision of the contract or specifi- 
cation modifying the same or in conflict therewith." 

(76-741, J. A. G., Dec. 31, 1914.) 



DETACH:ED SERVICE: Promotion while on stafe duty. 

A first lieutenant of cavalry while on duty in the field with his 
troop was, on October 7, 1914, detailed to perform additional duty 
as an acting adjutant of troops of his regiment, and on October 24, 
]914, accepted a commission as captain of cavalry when he ceased to 
do duty as an officer of the cavalry troop but remained on duty as 
acting adjutant in the field. 

Held, that the officer was after October 24th, and until he became 
assigned to and entered upon dut}'^ w^ith a troop of cavalry, on de- 
tached service within the meaning of the law governing detached 



458 DIGEST OF OPTXIONS OF THE JUDGE ADVOCATE GENEEAL. 

serA"ice, and that he did not come within the special rale provided 
by the Act of April 27, 1914 (Public No, 91, p. 8), making exceptions 
to the requirements of the general detached service legislation. 
(6-124, J. A. G., Dec. IT, 1914.) 



DISCHARGES: Revocation of dishonorable discharge; insanity. 

The Superintendent of the Government Hospital for the Insane 
ad^•ised the War Department in respect to two prisoners confined in 
that institntion that he had come to the conclusion, after an investi- 
gation of the history of the cases, that both of the men were insane 
at the time they committed the offenses which led to their dishonorable 
discharge from the Army, and he suggested the substitution in each 
case of an honorable discharge on certificate of disability for the dis- 
honorable discharge. The issue of insanity was not raised at the 
trial of the men, and they were regularly convicted by competent 
courts-martial. The sentences were duly approved by the reviewing 
authorities, and had been fully executed. 

Ileld^ tliat the soldiers having been legally tried and sentenced 
and the sentences fully executed, it was beyond the power of the 
Executive to substitute honorable discharges for the dishonorable 
ones. (Dig. Op. J. A. G., 1912, p. 456.) 

(28-620, J. A. G., Dec. 18, 1914.) 



ENLISTMENT: Antedating; continuous service pay. 

By the Act of May 11, 1908 (35 Stat., 109), authorizing continuous 
service pay for honorably discharged soldiers who reenlist within 
three months after their discharge, it was provided that if an hon- 
orably discharged soldier reenlists after the expiration of three 
months he is to be regarded as in his second enlistment where his 
discharge was from his first or any subsequent enlistment. On June 
19, 1914, a soldier was given an honorable discharge from his third 
continuous enlistment. On August 25, 1914, he applied at Kansas 
City, Mo., for reenlistment, was deemed qualified and was forwarded 
to the recruit depot at Jefferson Barracks, Mo., on the same date, but 
was there rejected on August 2Tth, on account of flat foot. He 
applied at Fort Leavenworth, Kans., September 24, 1914, and was 
accepted and sworn in on that date, three months and five days after 
his discharge. 

Tlelfl^ that the soldier's enlistment could not be antedated so as to 
give him the benefit of fourth enlistment pay, his case not coming 
within the provisions of Par. 859, Army Regulations, which au- 
thorize the antedating of an enlistment where the delay was " through 
no fault of the soldier but for the convenience of the GoA'ernment." 

(31r-042, J. A. G., Dec. 12, 1914.) 



HORSE SHOWS: Participation of troop of Cavalry in horse show. 

In the Army Appropriation Act of April 27, 1914 (Pub. No. 91, 
p. 15), it was provided that no part of any appropriation shall be 
expended for traveling expenses of officers, enlisted men or horses 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 459 

in attending or taking part in horse shows or horse races with the 
qualification that — "nothing in tliis proviso shall be held to apply 
to the officers, enlisted men, and horses of any troop, battery, or 
company which shall, b}^ order or permission of the Secretary of 
War, and w^ithin the limits of the United States, attend any horse 
show or any State, County, or Municipal fair, celebration, or 
exhibition." 

Held, that the purpose of the provision was to prohibit the use of 
public funds for paying expenses for participation in horse shows, 
fairs, etc., except when the participation is organizational, and that 
there was no legal objection to permission being given by the Sec- 
retary of War for the order of the band and the entire troop of the 
10th Cavalry to attend the New York Bed Cross Horse Show, as re- 
quested. 

(94-231, J. A. G., Dec. 2, 1911.) 



MILITIA: Purcliase of military supplies. 

A lieutenant of a State Militia desired to purchase from the En- 
gineer Corps, TJ. S. Army, a cavalry sketching board for use in 
instructing a militia cavalry troop. 

Held, that Section IT of the Act of January 21, 1903 (32 Stat., 
778), was authority for making the sale of such articles for the use 
of militia troops, " at the price at which they are listed for issue to 
the Army, with the cost of transportation added," but that the re- 
quest should be signed by the Governor of the State or by some one 
purporting to act by his authoritv. 

(80-150'^, J. A. G.; Dec. 2, 1914.) 



POST EXCHANGE: Internal revenue tax. 

By the Act of October 22, 1914, commonly known as the war reve- 
nue act, it was provided that — 

" Dealers in tobacco * * * whose annual receipts from the 
sale of tobacco exceed $200 shall each pay $4.80 for each store, shop, 
or other place in which tobacco in any form is sold." 

Held, that post exchanges, being Government agencies, are not re- 
quired to pay the tax. {Dugan v. United /States, 34 Ct. Cls., 458.) 

(40-100. J. A. G- Dec. SOj 1914.) 

The Act of October 22, 1914, commonly known as the war revenue 
act, enumerates in Schedule B various articles under the heading, 
"• Perfumeries and cosmetics and other similar articles," which are 
required to have affixed thereto, on each container, an adhesive in- 
ternal revenue stamp of the prescribed denomination, and further 
provides that such articles in the hands of dealers on and after De- 
cember 1, 1914, shall be subject to the tax, but that " it shall be 
deemed a compliance with this Act as to such articles in the hands 
of dealers on and after December as aforesaid who are not the manu- 
facturers thereof to affix the proper adhesive tax stamp at the time 
the packet, box, bottle, pot, or phial, or other inclosure with its 
contents is sold at retail." 



460 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

Ileld^ that post exchanges are dealers within the meaning of this 
provision of the Act and are not permitted to sell the articles subject 
to the tax without the prescribed revenue stamps thereon. 

(90-313, J. A. G., Dec. 22, 1914.) 



PROBATION: Period of duty under enlistment. 

An enlisted man was sentenced by court-martial to confinement at 
hard labor for six months and to forfeiture of $10 per month of his 
pay for the same period. After serving one-half of this sentence, the 
soldier was placed on probation in accordance with Paragraph 943, 
Army Regulations, 1913, the first sentence of which provides: 

"After a garrison prisoner has served one-half of his sentence he 
may, if his enlistment has not expired, submit to the commander of 
the post where the sentence is being executed a request to be put on 
probation for the remainder of the term of confinement adjudged, 
and upon the request being granted the soldier will be restored to 
duty upon condition that if his conduct is not good while on proba- 
tion he will be required to serve the remainder of his sentence." 

Jleld^ thnt under the regulations, the soldier's conduct having been 
good during his probation, he was not required to serve the re- 
mainder of his sentence, and hence that the period of his probation 
was to be considered as a period of duty under his term of enlistment. 

(80-461, J. A. G., Dec. 19, 1914.) 



REGULATIONS: Operative on promulgation. 

A soldier was tried by a court-martial on September 21, 1914, for 
desertion, found guilty of absence without leave only, and was sen- 
tenced to confinement " and to stoppage of fifty dollars of his pay, 
the amount paid by the Government for apprehension as a deserter," 
which sentence was, at that time, authorized by Paragraph 128, 
Army Regulations. The case was forwarded to the reviewing officer 
September 11th. and the sentence was approved by him September 
30th and thereafter carried out. Subsequent to the trial and sen- 
tence, and before the reviewing officer's approval of the sentence. 
Paragraph 128, Army Regulations, was changed by general orders 
promulgated to the Army from the War Department on September 
15. 1914, so as to provide that upon conviction of a soldier of absence 
Vv^thout leave only, " any amount paid as a reward for his arrest will 
not be stopped against his pay." Orders promulgating this change 
in the regulations had not been received by the reviewing officer when 
he approved the sentence. 

Ileld^ that the promulgation to the Army on September ISth of the' 
order modifying Paragraph 128, Army Regulations, operated imme- 
diately to change the regulation, and that as the sentence had not 
been approved by the reviewing officer the part thereof directing the 
stoppage of $50 on account of the reward paid for Viw soldier's appre- 
hension be(;ame unauthorized and the soldier was entitled to have the 
amoimt refunded. 

(2G-422, J. A. G., Dec. 19, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 461 

STATE LAWS: Operation of, within military reservations. 

A state law was passed in Arizona providing that vchere more than 
five persons are employed on any piece of work in the state, eighty 
per centum of the workers so employed must be citizens of the United 
States. 

Ileld^ that this act (since held unconstitutional by the C. C. A., 9th 
Cir., U. S.) could have no operation or effect within a military reser- 
vation in the state over which exclusive jurisdiction had been ceded to 
the United States except the right to serve civil and criminal processi. 
{Railway Co. v. MeGlinn, 114^U. S., 542.) 

(4-350, J. A. G., Dec. 2, 1914.) 



STOPPAGE: Of pay of soldier to reimburse United States. 

A deserter from the U. S. Army enlisted in the Marine Corps at 
Boston, Mass., and was transferred to Norfolk, Va. Upon his arrival 
at Norfolk, he was recognized as a deserter and turned over to the 
military authorities. The Marine Corps incurred an expense of 
$10.10 in connection with the fraudulent enlistment and request was 
made that this amount be entered as a stoppage against the soldier's 
pay. 

Held., that in the absence of restrictive legislation, the Secretary of 
War has the power to direct the stoppage of a soldier's pay to satisfy 
an indebtedness to the United States, although the indebtedness may 
have been incurred in another Department of the Government. 

(72-510, J. A. G., Dec. 1, 1914.) 



TRAVEL ALLOWANCES: Of officer for travel not under competent orders. 

An officer of the Army stationed at the Walter Reed General Hos- 
pital Avas included in orders of September 8, 1914, appointing a 
board to meet in the City of Washington for the purpose of making 
investigation concerning the personal equipment of the Hospital 
Corps. Instead of meeting in Washington, the board held its meet- 
ings at Fort Myer, Va., commencing September 30th and continuing 
at intervals until November 17th. In submitting his mileage voucher 
for payment for travel between Walter Reed General Hospital and 
Fort Myer to attend the several meetings, the officer explained that 
" the board meetings were held at Fort Myer, Virginia, where 
facilities were better for considering matters before it." 

HeM.,^ that the officer was not entitled to mileage for that portion 
of the journeys between Washington and Fort Myer, the travel not 
having been urgent within the exception in par. 1285, Army Regu- 
lations, which is the only condition under which mileage may be 
allowed for travel performed without competent orders. 

(94-210, J. A. G., Dec. 11, 1914.) 



TRAVEL ALLOWANCES: Officer traveling with detachment as escort to 
officer of Mexican army; " traveling with troops;" Army Regulations. 

An officer of the Army at Eagle Pass, Tex., was directed to proceed 
by rail with a detachment of six enlisted men not of his command, to 
Naco, Ariz., as an escort to General Benjamin Hill, Constitutional 



462 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL, 

Aniw of Mexico, and party, and to return upon completion of such 
duty to their proper station. The enlisted men were furnished trans- 
.portation and subsistence by the Quartermasters Department, the 
officer paying his own expenses. By the Act of June 1-2, 1906 (34 
Stat., 345), it was provided that officers, when traveling under com- 
petent orders without troops shall be paid mileage ; and by Par. 1281, 
Anny Eegulations, it was provided that the term "traveling with 
troops " would not be regarded as covering cases of officers included 
in the movement by railroad of detachments of less than 10 al-med or 
unarmed men, such as " escorts for Inspectors, Quartermasters and 
others." 

Held, that the word " others " in the clause " escorts for Inspectors, 
Quartermasters and others," Par. 1281, Army Eegulations, shoulcl 
not be understood as referring onlj^ to those in the military service 
of the United States, and that the officer was entitled to mileage as 
having performed travel without troops within the meaning of the 
regulation and statute. 

(94-210, J. A. G., Dec. 12, 1914.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

CONTE/ACTS: Written proposal and acceptance; transportation rates. 

About the 1st of January, 1912, the Quartermaster's Department 
accepted the tenders of various western railroads for carrying freight 
destined to Manila at rates considerably less than those available to 
the general public. About the 1st of January, 1914, the railroads 
involved put into eifect a new export tariff providing rates to the 
general public on freight destined to Manila in most cases under the 
Government contract rate. The question was presented whether for 
Government freight carried after the new tariff went into effect the 
settlement of pending claims should be made in accordance with the 
contract rates or in accordance with the new tariff rates where they 
were lower than the contract rate. 

HeJd^ that in respect to the reduction in rates the agreements were 
not for that reason invalid, as they were, when made, advantageous 
to the Government; that it is axiomatic that a contract valid when 
made remains effective until its expiration notwithstanding fluctua- 
tions that might happen afterwards; that the agreements were in- 
valid, however, because not made in accordance with the provisions 
of Section 3744, Revised Statutes, but in so far as they had been per- 
formed their invalidity was immaterial {United Sfafes v. Andrevs 
Co., 207 U. S., 229; Sf. Louis Bay & Grain Co. v. Vnited States, 191 
XT. S., 159), and that as both the War Department and the carriers 
considered the agreements effective, the rates named therein should 
be applied to all shipments made thereunder and existing accounts 
settled accordingly. Held further, that as the agreements were in- 
valid as executory contracts no notice was necessary to terminate 
them. 

(Comp. Geo. E. Downey, Dec. 1, 1914.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 463 

TS,ANSPOS.TATION: Disdiarged soldier using transportation request as 
part payment of fare on tlii'ough trip. 

A soldier discharged at San Francisco, Cal., and desiring trans- 
portation to Somerset, Ky., was furnished a (jovernment transporta- 
tion request for transportation from San Francisco to Granger, Wyo., 
the ultimate point in the direction of Somerset, Ky., to which he 
was entitled to transportation. The railroad company would not 
accept the request in part payment for a single through ticket to 
Somerset at the regular through rate, but issued to the soldier a 
ticket to Granger, Wyo., and another ticket thence to Somerset, Ky., 
for which the soldier was required to pay the local rate of $40.53. 
The value of the transportation from San Francisco to Granger was 
$34.40, and the through rate from San Francisco to Somerset was 
5^53.00. The soldier contended that he should have been allowed 
the money value of his transportation request toward the payment 
of the through rate of $53.60 and required to pay only the balance, 
or $19.20. In a decision of August 14, 1914 (2i Gomp. Dec, 76), 
the Comptroller held in substance that in honoring transportation 
requests issued to discharged enlisted men, a transportation company 
must adhere to the stipulations upon the requests by issuing trans- 
portation of the character specified therein and between the points 
named. 

Held., that the railroad company, in taking up the transportation 
request and issuing a ticket thereon to the destination called for, 
did only what it was requested to do by the Government, and that 
the Comptroller had no jurisdiction to render an authoritative de- 
cision as to the right of the railroad company under the circum- 
stances to collect from the soldier more than the regular through 
rate. 

(Comp. Geo. E. Downey, Dec. 8, 1914.) 



BULLETIN 5. 

Bui.letin| WAE department, 

No. 5, J Washington, Fehimary 6", 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of Janiiai-y, 1915, of certain decisions of 
the Comptroller of the Treasury, and of an opinion of the Attorney 
General, is published for the information of the service in general. 
[2255370, A. G. O.] 
By order of the Secretary of War: 

H. L. SCOTT, 
Brigadier General.^ Chief 'of Staff. 
Official,: 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ACTING DENTAL GUBGEONS: Not officers of the Army. 

The question was presented as to whether an acting dental surgeon 
is an officer of the Army, within the meaning of the Act of March 3, 
1885 (23 Stat., 350), authorizing the reimbursement of officers and 
enlisted men for the value of private property lost or destro^^ed in the 
military service. Acting dental surgeons occupy the same official 
fctatus as contract dental surgeons (36 Stat., 1051) , and contract dental 
surgeons have the same official status as contract surgeons (31 Stat., 
752). 

Held, following previous rulings of this office in respect to contract 
surgeons (Dig. Op. J. A. G., 1912, p. 97), that acting dental surgeons 
are not officers of the Army, within the meaning of the Act of March 
3, 1885 ; that they form no part of the military establishment, but are 
merely civilians under contract to render personal service. 

(18-461, J. A. G., Jan. 11, 1915.) 



CIVILIANS: Expenses for treatment of, in Government hospital. 

A transport surgeon at San Francisco, Cal., after rejecting, on 
October 1, 1914, a temporary employee as physically unfit for the 
transport service and therefore ineligible to sign the ship's articles, 
and aftei- the hitter's employment of about two weeks as water tender 
on the transport had ceased, gave him a letter, dated October 5, 1914, 
to the Letterman General Hospital, stating that " bearer ... is an 
employee of the transport service, who desires treatment for 
464 



DIGEST OF OPINIONS OF THE JUDOE ADVOCATE GENERAL. 465 

hernia . . ." Subsequently a claim was presented to the Medical 
Department on behalf of the hospital fund for reimbursement ot 
$10.40 for the patient's subsistence while under treatment at the 
hospital from October 6 to 31. 

Held, that the patient having ceased to be an employee of the trans- 
port service before his admission to the hospital and the disability 
for which he was treated having antedated his service, there was no 
provision of law or regulation authorizing the payment of the said 
expenses from public funds. Held further, that the hospital fund 
was entitled to reimbursement and that as the transport surgeon 
seemed to be responsible for erroneously causing the patient's admis- 
sion into the hospital as an employee of the transport service, he 
should be held liable for the payment of the claim. 

(94-120, J. A. G., Jan. 12, 1915.) 



CONTRACTS: Failure to accept bid within stipulated time limit; liability 
of guarantors. 

Bids were invited and opened July 16, 1914, for the construction 
of 315 refrigerators. The bids were accompanied by guaranties to 
keep the bids open for acceptance for sixty days, and in default of 
the bidder to enter into contract in event of the acceptance of his bid 
within the sixty day period the guarantors were bound to pay to the 
United States the difference in cost, if any. in case of purchases else- 
where. The award was made, but not within the sixty-day period, 
and subsequently the successful bidder was adjudged a bankrupt and 
became unable to carry out the agreement. 

Held, that the failure to accept the bid within the sixty-day period 
absolved the guarantors from all liability. Held, fwrther, that there 
was no legal objection either to readvertising for new bids or to 
entering into a contract with the next lowest bidder if the latter were 
willing. 

(76-240, J. A. G., Jan. 15, 1915.) 



CONTRACTS: Liability of guarantors for failure of successful bidder to 
enter into and perform contract. 

A bid for furnishing horses, dated November 2, 1914, accompanied 
by a guaranty to enter into a contract, as required, within five days 
after notice of acceptance, was accepted and contract and bond were 
sent to the bidder on November 20, 1914, for execution, which he 
failed or refused to accomplish. He proceeded, however, to deliver 
horses for inspection, and up to January 18, 1915, when the time 
liniit for furnishing horses expired, he had produced about ninety 
animals, out of which number only nine were found acceptable. The 
bidder asked to be relieved from his obligation. 

Held, that the condition of the guaranty was broken by the failure 
of the bidder to enter into contract, as required, "within five days 
after said notice of acceptance," and that his guarantors were bound, 
to the extent of their undertaking under the terms of the guaranty, 
to pay to the United States the difference, if any, in money between 

93668°— 17 30 



466 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the amoimt of the bidder's proposal and the cost to the United 
States of the horses purchased elsewhere. 
(76-600, J. A. G., Jan. 23, 1915.) 



CONTRACTS: Failure of subject matter of contract dvie to act of God. 

A contract for furnishing hay at a post in Texas called for choice 
prairie feeding hay, the highest of the locality. Owing to a severe 
drought, followed" by heavy rains and floods, the quality of the 
Texas crop of prairie hay was very poor, but the quartermaster ac- 
cepted deliveries of the inferior hay, described as " a poor grade of 
prairie grass, overcured, lifeless," and containing " little nutriment," 
paying therefor the contract price, on the ground that there was 
no' better hay to be had in the open market. 

Held, that the contractor was not entitled to substitute an inferior 
quality of hay for the superior article called for by the contract; 
that if there was a failure of the subject matter of the contract, due 
to an act of God, he was entitled to have the contract canceled with- 
out liability to either party, and that if conditions required the pur- 
chase of inferior hay, either because a better quality could not be 
procured or because the emergency did not permit of the necessary 
delay to procure it, the inferior article should have been purchased 
at the market price. Held further^ that the opinion of this office of 
August 31, 1913 (W. D. Bui. No. 29, 1913, p. 7), upon which the 
quartermaster relied, was misconstrued bv him. 

(76-700, J. A. G., Jan. 9, 1915.) 



COimTS-MARTI AL : Publication of sentence. 

A general prisoner was received at Fort Leavenworth, Kans., Sep- 
tember 5, 1914, under sentence of confinement at hard labor for six 
months. A typewritten copy of the general court-martial order 
publishing the prisoner's sentence, dated August 11, 1914, accom- 
panied the prisoner, under which order the term of confinement, with 
reduction for good conduct time, would expire January 12, 1915. 
About two months later a fyinted copy of the general court-martial 
oi-der, dated September 21, 1914, publishing the same sentence was 
received at the prison, under which the prisoner's sentence Avould 
expire not earlier than February 23, 1915. The latter order con- 
tained the printed notation : " This order supersedes typewritten 
order publishing this case." 

TIeM, that the first oi-der legally completed the action of the re- 
viewing authoritv, and that the subsequent order was null and void. 

(30-540, J. A. "G., Jan. 9, 1915.) 



EXTHADITION: Transfer of enlisted man to another State for prosecution 
by civil authorities. 

Request was made tliat an enlisted man serving in Delaware lie 
transferred into the jurisdiction of New York with a view to having 
him indicted for abandoning his wife. Ileld^ that there is no pro- 
vision of law for the transportation, at the expense of the United 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 467 

States, to the place where he is wanted by the civil authorities, of 
a soldier charged with an offense, but that a soldier is, in respect of 
extradition process, in the same status as though he were in civil life. 
(Ti-lll.S, J. A. G., Jan. 26, 1915.) 



HEAT AND LIGHT : Noncommissioned officer on temporary duty in the 
field not entitled to fuel allowance at his permanent station. 

A regimental noncommissioned staff officer, on temporary duty 
with his regiment at Texas City, Tex., and entitled to one room as 
quarters, requested that his allowance of fuel be issued to his family 
at his permanent station. The Act of March 2, 1907 (34 Stat., 1107), 
provides for the allowance of heat and light for the authorized allow- 
ance of quarters for officers and enlisted men. 

Held, that there is no statutory authority for an enlisted man to 
retain quarters at his permanent station while on temporary duty in 
the field, similar to that provided for officers by the Act of February 
27, 1893 (27 Stat., 480), and that, therefore, the noncommissioned 
officer was entitled to his fuel allowance only at his^ place of service, 
where only he was entitled to quarters. 

(72-411, J. A. G., Jan. 14, 1915.) 



HEAT AND LIGHT: Pay clerks. 

The question was presented whether a pay clerk, duly assigned to 
and occupying public quarters at a military post, is entitled to heat 
and light at public expense under the Act of March 2, 1907 (34 Stat., 
116T), which provides for the furnishing of heat and light actually 
necessary for the authorized allowance of quarters for officers and 
enlisted m.en. 

Held, that the pay and alloAvances of pay clerks of the Army are by 
statute (Act of Mar. 3, 1911, 36 Stat., 1044; and Act of June 24, 1910, 
36 Stat., 606) made the same as paymasters' clerks and warrant 
officers of the Navy ; that by the Act of March 3, 1901 (31 Stat., 1107) , 
and section 1616, Revised Statutes, the latter are given the same allow- 
ances of quarters as are provided for a 2d lieutenant of the Army, 
but that no statutory provision is made for furnishing heat and light 
for their quarters at public expense. 

(72-310.1, J. A. G., Jan. 20, 1915.) 



PRIVATE BUSINESS: Officers engaging in. 

A typewriter company inquired wdiether it was within the province 
of captains, lieutenants, sergeants, etc., to sell typewriters to their 
" fellow officers " on commission. Held, that such a practice would not 
receive the favorable indorsement of the War Department. 

(6-127, J. A. G., Jan. 18, 1915.) 



QUARTEIIS: Officer in command of disciplinary company, military prison. 

By the Act of March 2, 1901 (31 Stat., 901), it is provided that the 
Secretary of War may determine what shall constitute travel and 



468 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

duty without troops within the meaning of the laws governing the 
payment of mileage and commutation of quarters to officers of the 
Army. Under authority of this statute, the Secretary of War pre- 
scribed Paragraph 1300, Army Regulations, 1913, which provides, 
inter alia, that officers on duty at places where public quarters are not 
furnished, "but where enlisted men are on duty only as guards, 
orderlies, clerks, and messengers," are regarded as being on duty 
without troops. ^^8=>ar-^r-?' 

An officer was placed in command of the disciplinary company, in 
addition to other duties, at the Atlantic Branch of the United States 
Military Prison, Fort Jay, N. Y., said company consisting of about 
80 men sentenced to dishonoralile discharge. In addition there were 
20 enlisted men performing the duties of instructors and overseers 
of the prisoners. 

Held, that none of the prisoners was serving the United States 
under an enlistment contract, but all were serving confinement imder 
sentence and were, therefore, not trooj)s; that the 20 enlisted men 
performed some guard duty, but were mainly employed as instruc- 
tors and overseers; that they were not "on duty only as guards," nor 
employed as orderlies, clerks or messengers, and that the officer was 
not, in the sense of the regulation, on duty without troops. 

(72-333, J. A. G., Jan. 12, 1015.) 



TRAVEL ALLOWANCES: Discharged soldiers; transportation in kind inr- 
nished and not used. 

An enlisted man, honorably discharged at Fort McDowell, Cal., 
from an enlistment effected in the Philippine Islands, was, upon his 
request, given a Government transportation request for transporta- 
tion in kind from San Francisco, Cal., to Baltimore, Md., in accord- 
ance with the Act of August 24, 1912 (37 Stat., 57G), which provides 
that an honorably discharged soldier shall be entitled to transporta- 
tion in kind and subsistence from the place of his discharge to the 
place of his enlistment, or to such other place within the continental 
limits of the United States as he may select, to which the distance is 
no greater than from the place of discharge to the place of enlistment. 
The act further provides that in lieu of such transportation and sub- 
sistence, the soldier may elect to receive two cents a mile except for 
sea travel. The soldier changed his mind and reenlisted at Fort Mc- 
Dowell, returning the transportation request to the quartermaster. 
He then inquired whether he was not entitled to receive in money, 
from the Government, the amount that the transportation to Balti- 
more would have cost the Government had he used it. 

Held, that the soldier was only entitled to transportation in kind 
because his rights were based upon sea travel, and this was so whether 
he returned to the Philippines, the place of his enlistment, or jour- 
neyed in the opposite direction, and that the law makes no provision 
for commuting to soldiers the value of transportation in kind where 
they are not entitled to the regular statutory two cents a mile allow- 
ance. _ 

(94-330, J. A. G.rJan. 23, 1915.) 



DIGEST OF OPINIONS OF TIIE JUDGE ADVOCATE GENEEAL. 469 

DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in tlie office of the Judge Advocate General.) 

PURCHASE OF SUPPLIES: Requirements as to advertising-. 

The Bureau of Mines purchased a gasoline truck after aclA'ertis- 
ing and receiving five proposals for furnishing the truck in accord- 
ance with specifications. Subsequently, the need for another truck 
of the same character having arisen, the bureau purchased a second 
truck from the same company that furnished the first, at the same 
price. It was certified on the voucher for payment that the truck 
was purchased " under informal agreement, upon immediate delivery 
or performance," and upon "■ non-competitive quotation without ad- 
vertising, by reason of impracticability to secure competition," there 
being, it was stated, " only one dealer from whom the articles can be 
obtained." 

Ilelcl^ that the certificate was not justified by the facts; that when 
the first truck was required five separate proposals were obtained 
for furnishing it, which showed that there w^as no lack of competi- 
tion ; that it cannot be concluded by one purchasing for the Govern- 
ment that a particular lyvahe of a needed article will be purchased, 
when other makere can furnish substantially the same article, and 
then from such conclusion adopt the further one that it is not possible 
to secure competition; that the requirements of vSection 3709, Eevised 
Statutes, as to advertising, are mandatory except wdiere immediate 
delivery is urgent; and also that Section 3744, Eevised Statutes, 
requiring all contracts of the War, Navy and Interior Departments 
to be reduced to writing and signed at the end thereof, should have 
been^complied with. 

(Comp. Geo. E. Downey, Jan. G, 1915.) 



STATE LAWS: Inspection of horses belcng-ing to the United States at State 
lines. 

The Southern Pacific Company put in a claim for reimbursement 
of $60.40 for cost of inspection of horses belonging to the United 
States en route from various points to California and Arizona. It 
w^as contended that the State laws required the inspections to be 
made before the admission of the horses into the States : that it was 
the duty of the carrier to permit and pay for such inspection in order 
to facilitate the prompt delivery of the shipment to the consignees, 
and that the law^ requiring such inspection was within the police 
power of the States. 

Held^ that the police power of a State to safeguard the health and 
property of its inhabitants does not extend to the right of interfering 
Avith the instrumentalities of the Federal Government; that the 
requirement of the State laws of evidence of the inspection of the 
horses did not make it the carrier's duty to make or permit the in- 
spection ; that the expenses were, therefore, voluntarily incurred 
without benefit to the United States, and that the carrier could not 
legally be reimbursed from public funds. 

(Comp. Geo. E. Downey, Jan. 14, 1915.) 



470 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

OPimON OF THE ATTORNEY GENERAL. 

(Digest prepared in tlie office of the Judge Advocate (ieueral.) 

CON"TE.ACTOE,S : Relief from performance of contract because of increased 
cost of contract supplies due to European war. 

A firm which entered into a contract before the outbreak of the 
European war to furnish supplies to the Treasury Department peti- 
tioned the Secretary of the Treasury for relief from further per- 
formance of their contract because of tlie increased price of contract 
supplies due to the war. Held, that the contractors were ol^ligated 
to perform the contract, if valid, if performance were physically 
possible ; that the existing hardship gave them no right to avoid the 
obligation ; that no executive officer has power to suspend, rescind or 
relieve from the obligation of a valid contract when either would be 
detrimental to the United States, however burdensome performance 
might be — esj^ecially where the added burden is not caused by the 
United States, and that in such cases relief can only be granted by 
Congress, M'hich body alone has power to recognize a moral claim for 
relief. 

(30 Ops. Atty. Gen., 301.) 



BULLETIN 9. 

BUT.LETIN 1 WAR DEPARTMENT, 

No. 9. J Washington, March 13, 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of February, 1915, and of certain deci- 
sions of the Comptroller of the Treasury, is published for the informa- 
tion of the service in general. 
[2255370 A— A. G. O.] 
By order of the Secretary of War : 

TASKER H. BLISS, 
Brigadier General, Acting Chief of Staff. 
Official : 
H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CONTRACTS: Change in statutory requirements as to form. 

In a decision of December 31, 1914 (21 Comp. Dec, 425), the 
Comptroller of the Treasury held that under Section 3744, Revised 
Statutes, contracts generally for the purchase of supplies or procure- 
ment of services for the Army were required to be reduced to writing 
and signed by the contracting parties at the end thereof, except as 
to emergency purchases, or where the amount for supplies or services 
did not exceed $500 and immediate performance was contemplated. 
The eifect of this decision is modified by the following provision of 
the Army Appropriation Act, approved March 4, 1915 (Pub. No. 
292) : 

" That hereafter whenever contracts which are not to be performed 
within sixty days are made on behalf of the Government by tlie Quar- 
termaster General, or by officers of the Quartermaster Corps author- 
■ized to make them, and are in excess of $500 in amount, such con- 
tracts shall be reduced to writing and signed by the contracting 
parties. In all other cases contracts shall be entered into under 
such regulations as may be prescribed by the Quartermaster General." 

The effect of this legislation is to require formal written contracts 
in the Quartermaster's Department only where the agreement is not 
to be performed within 60 days and the amount involved exceeds 
$500. Formal written contracts will not be necessary («) where the 
amount involved does not exceed $500, or (5) where, regardless of 
the amount, performance is to be completed within 60 days, unless 
required by regulations prescribed by the Quartermaster General. 

471 



472 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

COURTS-MARTIAL: Officers of Judge Advocate General's Department not 
available as counsel. 

A lieutenant applied for the detail of an officer on duty in the 
office of the Judge Advocate General of the Army to appear as 
counsel in his defense at a general court-martial trial. 

Hdd^ that the Judge Advocate GeneraPs Office is on record as 
being opposed to officers of the Judge Advocate General's Depart- 
ment appearing as counsel for the defense in any case, which prin- 
ciple should be adhered to and should apply to assistants in the office 
of the Judge Advocate General. 

(30-423.3, J. A. G., Feb. 2, 1915.) 



DESERTION: Resignation of officer during Civil War. 

On October 1, 18G1, an officer of the United States Army tendered 
his resignation at San Francisco, Cab, and in November, 1861, joined 
the Confederate Army. No record was found of his having been 
granted any leave, nor of the acceptance of his resignation, but on 
December 2G, 1861, it was announced in General Orders from the 
AVar Department that the officer was dismissed on that date b}'^ direc- 
tion of the President because of his having tendered his resignation 
under circumstances showing disloyalty to the Government. 

HeXd, that in view of Section 2 of the Act of August 5, 1861, pro- 
viding that an officer leaving the Army under such circumstances 
" shall be registered as a deserter and punished as such," his status 
from the date he tendered his resignation and quit the service of the 
Ignited States with intent to join the Confederate Army until his 
discharge on December 26, 1861, was that of an officer absent in 
desertion. 

(26-920, J. A. G., Feb. 27, 1915.) 



INDIAN SCOUTS: Contracts of enlistment. 

The question was presented whether the regular enlistment con- 
tract should be used for Indian Scouts. Indian Scouts are enlisted 
under Section 1112. Kevised Statutes, which authorizes the President 
to enlist a force of Indian Scouts " who shall act as scouts in the 
Territories and Indian country," and who " shall be discharged when 
the necessity for their service shall cease, or at the discretion of the 
department commander." 

The Act of February 2. 1901 (.31 Stat., 748), provides that the 
Army " shall consist oi fifteen regiments of cavalry, a corps of ar- 
tillery, thirty regiments of infantry * * *^ Indian scouts as now 
authorized' hy law^ and such other officers and enlisted men as may 
hereinafter be provided for." 

The Act of August 24, 1912 (37 Stat., 599), provides for all en- 
listments of the Army, to be made for a t-erm of seven years and sub- 
ject to the Army reserve provisions of the Act. 

Held, that the Act of August 24, 1912, makes no exception as to 
Indian scouts; that they are placed upon the same footing as other 
enlisted men of the Army, so far as their enlistment term is con- 
cerned; and that therefore the regular enlistment contract is the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 473 

only proper contract for their enlistment. Held further^ that under 
the provisions of Section 1112, Revised Statutes, Indian scouts may 
be discharged " when the necessity for their service shall cease, or 
at the discretion of the department commander," since those pro- 
visions have not been repealed. 
(6-150.1, J. A. G., Feb. 20, 1915.) 



LICENSES: For the erection of building's on military reservations. 

The proprietor of a restaurant on a military reservation applied 
for insurance on the building in which he conducted his business, and 
the question was raised as to who held title to the building. The 
building was erected in 1909 by a restaurant company, with the per- 
mission of the post commander. The restaurant company having 
proved unsatisfactory, the post commander had the value of the 
building appraised by a board of officers, and it was sold at the ap- 
praised valuation. *The purchaser subsequently made improvements 
and additions thereto, with the tacit approval of the commanding 
officer. 

Ileld^ that the question of title to buildings erected upon military 
reservations under licenses depends in each case upon the intent of 
the parties; that where licenses have been reduced to writing the ques- 
tion of title is not ordinarily difficult to determine, the general rule 
in such cases being that unless otherwise provided therein the title 
may be assumed to be in the licensee; that in the case of verbal licenses 
or permits, as in the instant case, while the controlling principle is 
likewise the intent of the parties, such intent is apt to be more diffi- 
cidt to determine, and must be gathered from the statements of the 
parties and'the known circumstances; that in the instant case the fact 
that the company which erected the building Avas permitted to sell 
it indicated that it was the intention of the parties to the license that 
the title should be in the licensee, and hence the purchaser acquired 
the vendor's title; such license, however, being revocable and the 
building subject to removal at the pleasure of the executive authority. 

(80-252, J. A. G., Feb. 2, 1915.) 



LINE OF DUTY: Enlisted man injured while cleaning pistol. 

An enlisted man on duty was injured by the discharge of a Gov- 
ernment automatic pistol which he was cleaning preparatory for in- 
spection. He had been on patrol duty and returned about 4.30 p. m. 
" He then looked after his mount, went to mess and returned to his 
tent to clean his arms for retreat inspection. He was fully under the 
impression that he had unloaded his rifle and pistol and found his 
rifle to be unloaded, which he cleaned first. He then proceeded to 
clean his pistol and it discharged, injuring him." 

Ileld^ that while the soldier was negligent in not assuring himself 
that his pistol was not loaded before he began cleaning it, under all 
the circumstances it was not regarded that his faihu-e to do so 
amounted to culpable contributory negligence; and that his injury 



474 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

should be regarded as having been incurred in line of duty. Held 
furtJier^ that the rule with respect to contributory negligence can not 
be applied in all its strictness in determining the question whether a 
soldier's injuries have been received in line of duty, but that injuries 
caused by gross carelessness are not in line of duty. 
(54-013, J. A. G., Feb. 26, 1915.) 



MILITARY ATTACHES: Expenses for travel as military observer. 

The military attache at Tokyo, Japan, submitted vouchers for mile- 
age for travel performed by him as " military observer " in accom- 
panying the Japanese Expeditionary Campaign against the German 
province of Kiao-chau, that oilicer having been directed by the War 
Department to perform the duty mentioned upon his advice that " the 
Japanese War Department has authorized one military attache from 
each Treaty country to accompany the Expeditionary forces to Kiao- 
chau." 

Ileld^ that the travel came within the provision of the current 
Army Appropriation Act (38 Stat., 315), "for * * * the actual 
and necessary traveling expenses incurecl by military attaches abroad 
under orders from the Secretary of War " ; that the officer was, there- 
fore, entitled to reimbursement for his actual and necessary traveling 
expenses, and was not authorized to receive mileage. 

(99-270, J. A. G., Feb. 9, 1915.) 



POST EXCHANGES: Shortage in accounts; responsibility. 

Upon an examination of the accounts of a certain post exchange 
the Inspector General's Department found a shortage in the accounts 
for each month for the period from August 1, 1913, to June 15, 1914, 
aggregating $655.84. The accounts had not been kept in accordance 
with the requirements of the post exchange regulations and it was 
evident that the loss might readily have been detected by proper 
auditing of the accounts by the members of the post exchange coun- 
cil, as required by regulations. During the period mentioned the post 
exchange council took no inventory of the stock, notwithstanding the 
requirements of the regulations that such inventory be taken by them 
quarterly or oftener. 

Ileld^ that post exchanges being agencies of the Government, the 
duties imposed upon officers in the management of their affairs are 
as binding upon them as any other duty to which they may be as- 
signed under competent military authority; that when the property 
or funds of an exchange are lost through mismanagement or neglect 
of such officers the least that can or should be exacted, in the public 
interests, is that they make good the loss: that this principle applies 
as well to members of an exchange council as to the exchange officer; 
and that in the instant case it was the duty of the Department, in 
the public interests, to direct the entry of stoppages against the pay 
of the several members of the exchange council and of the exchange 
officer, in equal sums, to cover the shortage. 

(40-100, J. A. G., Feb. 24, 1915.) 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 475 

RETIRED OFFICERS: Powers and duties when assigned to recruiting duty. 

The question was presented whether a retired oflicer of the Army 
detailed to recruiting duty was authorized to administer oaths and 
execute depositions. Doubt arose because of the opinion of this 
office of November 14, 1914 (Bull. No. 52, W. D. 1914, p. 4), holding 
that a retired officer assigned to active duty and detailed as acting 
quartermaster and directed to take charge of the property and funds 
pertaining to the Quartermaster Corps at a post, could not be ap- 
pointed summary court officer for the reason that the law authorizing 
the detail of retired officers on staff duty requires that it shall not 
involve " service with troops." The Act of April 23, 1904 (33 Stat, 
264), authorizes the Secretary of War to assign retired officers of 
the Army, with their consent, " to active duty in recruiting " and, 
among other duties mentioned, to "staff duties not involving service 
with troops.*' 

Held., that the statutory restriction that staff duty shall not involve 
service with troops does not apply to recruiting duty; th(»t the lan- 
guage of the statute " active duty in recruiting " means that a re- 
tired officer so detailed shall perform the same duty as an officer on 
the active list so assigned, exercising the same power over and bear- 
ing the same relation to enlisted men at the recruiting station ; that, 
being the only officer at a recruiting station, he constitutes the sum- 
mary court-martial and is competent to administer oaths and execute 
depositions by virtue of the Act of March 2, 1913, which provides 
that " when but one officer is present with a command, he shall be 
the summary court-martial of that command and shall hear and 
determine cases brought before him." 

64-219.22, J. A. G., Feb. 12, 1915.) 



TRANSPGRTATIOIsr: Excess shipments upon change of station. 

An officer whose freight allowance upon change of station was 
5,100 pounds, in changing stations from Fort Eiley, Kans., to Scho- 
field Barracks, H. T., shipped an automobile from San Francisco 
weighing 2,000 pounds. At a later date he shipped a piano from 
Fort Riley, Kans., weighing 935 pounds, and still later household 
goods Aveighing 5,042 pounds. The total weight of the shipments 
from San P^rancisco to Honolulu was 7,977 pounds, and from Fort 
Riley to Honolulu, 5,977 pounds. 

Held, that the officer w'as chargeable only for the excess shipments 
as actually made, or for 2,877 pounds from San Francisco, and 877 
pounds from Fort Riley, together with the additional expense, if 
any, incurred by the Government by reason of the excess shipment 
from San Francisco. 

(94-233, J. A. G., Feb. 2, 1915.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the Office of the Jutlse Advocate General.) 

CONTRACTS: Adjustment of mistake made in final payment. 

In making final payment to a contractor for engineer supplies 
there was erroneously deducted as liquidated damages for a supposed 
delay of three days in making deliveries the sum of $120. It was 



476 DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENEEAL. 

found later that contrary to the contract provisions no account had 
been taken of a dehiy of eight days caused by the (lovernment. 

Held., that upon the approval by the Chief of Engineers of the 
finding, " the voucher submitted covering the refund of such deduc- 
tion may properly be made." 

(Comp. Geo. E. Downey, Feb. 8, 1915.) 



CONTRACTS: Deliveries of contract supplies after expiration of contract. 

A contract was entered into for f urnisliing 100,000 pounds of bran 
at a military post during the fiscal year 1911. It contained the 
usual option in favor of the United States to increase or decrease 
the quantity to the extent of 20 per cent at any time or times during 
the continuance of the contract, and that in case of the withdrawal 
of troops from the post the quantity to be delivered should be modi- 
fied in accordance with the requirements of the Government. It was 
further provided that " in case of change, if the quantity required be 
increased or decreased, notice in writing of such change v-ill be served 
upon the contractor by the contracting officer." There was delivered 
during the life of the contract only 54,960 pounds of bran, this being 
all that was called for by the Government, owing to a material 
reduction in the garrison. The Government gave the contractor no 
notice in writing of its intention to reduce the amount to be deliv- 
ered under the contract, and the contractor for that reason claimed 
the i-igiit to deliver the remainder of the contract quantity at the 
contract price. Upon the question whether the Quartermaster De- 
partment was authorized to accept the bran after the contract had 
expired and after new contracts w-ere aw^ardecl for bran at a lower 
price. 

Held., that the contract expired under its own limitations on June 
30, 1914; that after that date the Government could not, as a matter 
of right, order supplies under the conti'act any more than the con- 
tractor could be compelled to deliver supplies so ordered. 

(Comp. Geo. E. Downey, Feb. 6. 1915.) 



CONTIIACTS : Open market purchases. 

A contract was made for furnishing the Government Hospital 
for the Insane, Washington, D. C, Avith flour, "as may be required 
and ordered " during the period July 1, 1914, to October 31, 1914, 
at $4.40 per barrel. During July, August, and September there were 
drdy delivered on orders T96 barrels of flour. The hospital having 
ordered 500 barrels for October delivery, the contractors delivered 
250 barrels and declined to deliver more, owning to the fact that the 
cost of M'heat and flour had materially advanced, due to the European 
war and other causes, and because they considered the order m excess 
of the actual needs of the hospital for the period covered by the 
contract. The hospital thereupon purchased in the open market 250 
barrels of a similar gi-ade of floui-, chai-ging tlie excess cost, $387.25, 
against the contractors. 

Ilcfd^ tliat tlie contractors were obligated to furnisli tlio (juantity 
of flour that was ordered to supj^ly the actual and reasonable needs 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 477 

of the hospital during the contract period ; that it was for the hospital 
authorities to determine those needs; and that any determination 
of such needs which on its face did not appear to be unreasonable 
or capricious, or made without due regard for those interests of the 
contractor which general principles of law would protect and safe- 
guard, would be accepted by the Comptroller as correct and binding 
upon the contractors; but that, inasmuch as it had been ascertained' 
upon inquiry that during the contract period the hospital actually 
used only about 1,000 barrels of flour, and since the contractors had 
delivered 1,04(3 barrels, they had literally and in fact supplied all 
reasonable needs of the hospital for the full period covered by the 
contract, and that they were consequently not liable for the excess 
cost of the 250 barrels charged against them. 
(Comp. Geo. E. Downey, Feb. 13, 1915.) 



COURT-MARTIAL SENTENCE: When forfeiture of pay commences to run. 

A soldier whose term of enlistment expired March 10, 1914, was 
retained to await the sentence of a general court-martial, v.diich was 
promulgated in orders dated March 14, 1914, as follows: 

" To be confined at hard labor at such place as the revieAving au- 
thority may direct for six months, and to forfeit ten dollars per 
month for the same period." 

The soldier was discharged the service March 20, 1914. He had 
pay due him from January 1, 1914, and the question was presented 
w^hether on his final statements his pay for January and February 
was subject to a deduction of $10 per month under the court-martial 
sentence. 

Held, that the proper construction of the court-martial sentence 
meant that the execution of the forfeiture began with date of con- 
finement, and that if the soldier entered upon his term of con- 
finement under the sentence on March 14, 1914, the date of the 
promulgation of the sentence, the forfeiture of pay commenced on 
that date and ceased with his discharge on March 20, 1914, when his 
pay ceased. 

(Comp. Geo. E. Downey, Dec. 31, 1914, and Feb. 6, 1915.) 

Note.— See G. O. No. 70, W. D., 1914, p. 13, where the authorized 
form of sentence of forfeiture (in connection with a term of confine- 
ment) calls for the forfeiture to be " for a Ul'e period." Under this 
form of sentence, the period of forfeiture would begin, as prescribed 
in paragra]:»h 976, Army Eegulations, " loith the period for lohich 
pay lias accrued since last payment.'''' 



EXCHANGE: Payment of salaries abroad. 

The military attache at Peking, China, as acting quartermaster for 
the payment of his own accounts during the period from October 1, 
1912, to June 30, 1914, charged against the United States and paid 
to himself the sum of $196.04 as the cost of exchange. For example, 
the officer stated his pay account for a particular month, including 
all allowances, at $417.50, whicli he computed as equivalent to $852.04, 
local currenoy, on the basis of the value of the Mexican dollar in 



478 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

China, as published by the Treasury Department for customs pur- 
poses, and thereupon obtained from the International Banking Cor- 
poration at Peking that amount of money in exchange for his draft 
drawn on the Assistant Treasurer at New York for $446.91 ; the dif- 
ference between the latter sum and $417.50 being regarded as' the 
cost of exchange. 

' Held, that the officer was only entitled to his pay as fixed by law 
in United States Currency; that his check in payment thereof drawn 
on funds to his official credit should have been for the amount thus 
due, and that any excess was unauthorized; that while under certain 
circumstances exchange may be paid in the transaction of the public 
business abroad, there is no 'authority for it in the pi>yment of salaries 
which are fixed by law. 

(Comp. Geo. E." Downey, Feb. 6, 1915.) 



HEAT AISTD LIGHT: Furnished family of officer on temporary duty. 

An officer whose regular station was Texas City, Texas, was as- 
signed to temporary duty at Vera Cruz, Mexico, during the months 
of July, August, September, and October, 1914. His family con- 
tinued to occupy his quarters at Texas City. 

Held, that the officer was entitled to have his heat and light allow- 
ance furnished to his family at his regular station provided he did 
not avail himself of such allowance elsewhere. 

(Comp. Geo. E. Downey, Jan. 5, 1915.) 

Note. — The note published on page 6 of Bulletin No. 50, W. D., 
1914, should have been inserted on page 11, following the Digest of 
Coinptroller's Decision of October 10, 1914. 



BULLETIN 14. 

Bulletin! WAR DEPARTMENT, 

No. 14. j Washington, April 12, 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of March, 1915, of certain decisions of 
the Comptroller of the Treasury and of the courts, is published for 
the information of the service in general. 
[2255370 B— A. G. O.] 

Br ORDER OF THE SECRETARY OF WaR : 

H. L. SCOTT, 

Brigadier General, Chief of Staff. 
Official : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

ARMY ORDERS: Not revocable after executed. 

An officer of the Medical Reserve Corps, after serving on active 
duty for more than a year, was notified by War Department order 
that his relief therefrom would take effect upon the arrival of a 
successor. The officer at the proper time complied with this order 
directing that he proceed to his home and stand relieved from active 
duty, but on the same date applied for a month's leave of absence 
that he had earned and not taken. It w^as recommended in the 
officer's behalf that the order directing his relief from active duty 
be rescinded in order that he might take advantage of the leave that 
he had earned. The Act of April 23, 1908 (35 Stat., 68), creating 
the Medical Reserve Corps, prescribes when officers of that corps may 
be called into active service, and provides for their relief from such 
duty " when their services are no longer necessary." 

Held, that the order having been regular and valid its effect was 
to relieve the officer from active duty, and that the department had 
no power to revoke it so as to restore the officer to a duty status. 

(2-100, J. A. G., Mar. 15, 1915.) 



DESERTION: Removal of erroneous charge after separation of soldier from 
the service. 

A soldier Avhile under a charge of desertion was discharged from 
the service of the United States on a surgeon's certificate of disa- 
bility. The Department Commander subsequently issued an order 

479 



480 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

setting aside the charge of desertion as having been erroneously 
made. 

Ileld^ that while under paragraph 131, Army Eegiilations, the 
authority competent to order the trial of a deserter is competent to 
set aside the charge of desertion as having been erroneously made, he 
can not set aside the charge or exercise any administrative function 
respecting the man's military status after the soldier's separation 
from the service, w^hen the fact of desertion becomes a matter to 
be determined by the War Department. 

(26-520, J. A. G., Mar. 30, 1915.) 



EDUCATIONAL IWSTITUTIOlSrS: Cost to students of military supplies pur- 
chased from the War Department. 

The Act of July 17, 1914 (38 Stat., 512), authorizes educational 
institutions to which officers of the Army are detailed as professors 
of military science and tactics to purchase from the War Department 
for the use of their military students such stores, supplies, materiel 
of war, and military publications as are furnished to the Army " with 
the cost of transportation added." 

Tleld^ that this statute contemplates that the uniforms for the use 
of students should be furnished to such students at the War Depart- 
ment price with only the cost of transportation added, and that the 
educational institution could not properlj^ charge the stitdent with 
any additional expense to cover storage or the like. 

(80-160, J. A. G., Mar. 3, 1915.) 



LINE OF DUTY: Accident causing death of soldier absent on hunting pass. 

An enlisted man who, with three other soldiers, had been granted 
a hunting pass, was shot by the accidental discharge of a shot gun 
in the escort wagon in which the hunting party was returning to 
their station. The hunting pass covered the period from 10 a. m., 
December 31, 1914, to reveille, January 4, 1915. Reveille at their 
station was at 7.15 a. m., and the accident occurred about 7.30 a. m., 
fifteen minutes after the expiration of the pass, and while the party 
was thirty-three miles from their station, en route thereto. The 
soldier died from the wound. There was no evidence that he was 
intoxicated or that he was guilty of any negligence or misconduct. 

Ileld^ that hunting passes as provided for in paragraph 66, Army 
Eegulations, being privileges for the purpose of hunting game, re- 
sulting in small arms practice, a soldier's status while so engaged 
falls within the description of duty in respect of any injuries re- 
ceived from disabilities incurred thereunder; that a soldier when on 
furlough may be in line of duty when en route to his station at the 
expiration of his leave (Dig. Op. J. A. G., 1912, p. 688), and that 
in the instant case the soldier's death should be considered as having 
occurred in line of duty. 

(54-020, J. A. G., Mar. 29, 1915.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 481 

NAVIGABLE WATERS: Damages to wharf resulting from dredging opera- 
tions. 

The owner of a wharf on the river front in the City of Troy, 
N. Y., alleged that as a result of dredging operations carried on by 
authority of Congress in the river in front of his wharf the said 
wharf was damaged. He claimed that the Government was respon- 
sible and should restore the wharf to its former condition. He did 
not assert that the damage was the result of carelessness or negli- 
gence on the part of those executing the dredging operations, but 
contended that — 

" Where the work contemplates damage to the property of in- 
dividuals or where the damage is necessarily incident to the work, 
though unintentional, that damage should be repaired or compensated 
for as a part of the original plan and paid for out of the funds ap^ 
propriated for the execution of that plan." 

On behalf of the Government it was shown that the dredging 
operations were carried on in conformity with the project adopted 
by Congress for the improvement of the river; that the excavations 
were confined to the natural channel; that the contractor used all 
reasonable precautions; and that the failure of the wharf was not 
due to carelessness on the part of the contractor but to the weakness 
of the construction and the failure of the owner to take proper steps 
to strengthen it after having been fully and seasonably advised of 
the possibility of damage. 

Held, that as to structures situated waterward of high water mark 
on navigable waters as this one was, the cases are clear that they 
are subject to the consequences resulting from the exercise by Con- 
gress of the dominant right to improve the navigable waters, and 
that the Government is not liable for any damages resulting from the 
prosecution of such an improvement where such damages are purely 
consequential as in the instant case. 

(62-853, J. A. G., Mar. 27, 1915.) 



REWARDS: Not payable except in pursuance of a previous offer. 

. Four fishermen who found a drifting submarine mine in the ocean 
surf recovered it, and it was later taken possession of by the military 
authorities. On the question as to whether the fishermen could be 
paid a small reward, 

Held^ that as no reward had been offered, a payment as suggested 
would be in the nature of a payment for voluntary services and un- 
authorized in the absence of an express statute covering such cases. 

Held further, that a reward for services of this character might 
be paid from the appropriation for contingencies of the Army in 
any case where the services were performed in pursuance of an offer 
of reward previously made. 

(80-015, eJ. A. G., Mar. 18, 1915.) 



TAXATION: Internal revenue stamp on soldier's baggage at customhouse. 

The Internal Revenue Act of October 22, 1914 (38 Stat., 762), 
requires the payment of a stamp tax upon the " entry of any goods, 

93668°— 17 31 



482 DIGEST Of OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

wares, or merchandise at any customhouse, either for consumption 
or warehousing, not exceeding $100 in value, 25 cents," which ap- 
plies ordinarily to personal baggage of persons arriving at any port 
of the United States by sea. The Department's attention was called 
to the fact that noncommissioned officers returning from detached 
duty, conducting detachments of recruits to the Canal Zone, were 
required by the customhouse officials at New York to pay 25 cents 
as a stamp tax on each baggage declaration for their personal bag- 
gage, consisting only of necessary clothing and toilet articles. 

HelcU that the provision of law in question was not intended to be 
so applied as to tax officers of the Federal Government or soldiers 
in the performance of their official duties. 

(90-313, J. A. G., Mar. 26, 1915.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared iu the ofiice of tlie Judge Advocate General.) 

APPEOPIIIATIONS: Expenses for heating apparatus in new building-s. 

Upon the question whether the cost of heating apparatus for a new 
building at the Army and Navy General Hospital, Hot Springs, 
Ark., should be considered as a part of the expenses of construction 
of such building, within the meaning of the appropriation " Con- 
struction and repair of hospitals," and included in the limit of 
$20,000 fixed by Section 1136, Revised Statutes, 

Held^ that if CongTess had made no other provision for such equip- 
ment the construction appropriation would be available therefor, but 
that inasmuch as the appropriation " Regular supplies " contained a 
specific provision for " heating apparatus," the cost of such equip- 
ment could not properly be considered as an item of construction, 
within the limit fixed by Section 1136, Revised Statutes, but the ex- 
pense should be incurred under and chargeable to the appropriation 
"• Regular supplies." 

(Comp. Geo. E. Downey, Mar. 24, 1915.) 



CONTRACTS: Deduction for liquidated damages when in fact none resulted 
from delayed performance. 

A contractor for furnishing and erecting lock gates for a lock and 
dam construction within six months after notification of the approval 
of the contract was delayed for the convenience of the Government, 
and for other causes excusable under the contract, in making deliv- 
ery of the gates until after the contract j)eriod had expired, and the 
time was extended in accordance with the terms of the contract for 
a period equal to the delay for which the contractor was not re- 
sponsible. The contractor failed to complete the work within the 
contract time, as extended, and required 32 days additional. It was 
stipulated that time was of the essence of the contract, and liquidated 
damages at the rate of $20 per day were agreed upon for such de- 
lays as were not excusable, in addition to the cost of superintend- 
ence and inspection. In submitting voucher for final payment the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 483 

contracting officer certified that the completion of the general im- 
provements was not delayed by the delay in the completion of this 
contract, nor had the United States suffered any actual damages 
other than the cost of superintendence and inspection. 

Ileld^ that the contract having provided for the deduction of liqui- 
dated damages at an agreed rate, and such provision not having been 
waived or nullified by the acts of the parties, neither of the contract- 
ing parties could be heard to say that the delay not properly excused 
had in fact resulted in no damages to the Government; that where 
agreed liquidated damages are not manifestly unreasonable or ca- 
pricious, such agreement will be enforced regardless of whether any 
damages in fact result; that the provision in the contract for the 
proper extension of time to equal that lost without fault of the con- 
tractor operated to overcome the rule announced in judicial decisions 
that where the Government is responsible for the failure of a con- 
tractor to complete a work within a stipulated time it forfeits all 
claim to the stipulated damages for subsequent delays for which the 
contractor is responsible. 

Held further^ that the contracting officer having in mind the 
weather conditions usually prevailing during the original contract 
period in this case, and those that actually prevailed after its expira- 
tion, might be justified in making a more liberal finding as to the 
extension of time properly allowable to the contractor on the theory 
that one day after the original contract time expired was not equiva- 
lent to one day prior thereto. 

(Comp. Geo. E. Downey, Jan. 29, 1915.) 



HEAT AND LIGHT: Fictitious leases of quarters. 

The Auditor for the War Department disallowed certain payments 
for heat and light under a lease of quarters made by a quartermaster, 
purporting to be for one room to be occupied by a quartermaster ser- 
geant, the rental price being specified as $14 per month, and heat and 
light additional in accordance with the allowances specified in Army 
Regulations. The Auditor's action in disallowing the items for heat 
and light was based on the fact that the disbursing officer made a 
statement to the effect that $14 was the commercial value of the room 
occupied, and that, therefore, the additional charge for heat and light 
was not a proper charge against the United States. On appeal to the 
Comptroller, 

Held^ that the so-called lease was fictitious and a subterfuge, as the 
" room " rented was in fact a six-room house for which the agreed 
rental was $20 per month, the entire house having been occupied by 
the sergeant and his family, and the lessor having furnished no heat 
or light for the house ; that, owing to the irregularities, the Auditor 
would have been justified in disallowing credit for any part of the 
payments, including the $14 per month rental, but inasmuch as it 
appeared that a suitable room could not have been secured for less 
than $14 per month, that item was allowed. 

(Comp. Geo. E. Downey, Mar. 31, 1915.) 



484 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEBAL. 

PURCHASE OF SUPPLIES: Requirement as to advertising in purchasing 
motor trucks. 

The Chief Signal Officer, desiring to obtain two motor trucks of a 
certain make, requested the Quartermaster Department to purchase 
them " conforming with the specifications of your department." Cir- 
cular advertisements were.sent out to different manufacturers for two 
motor trucks in accordance with specifications approved by the Chief 
Signal Officer. The lowest bid obtained was $2,200 each, and the next 
lowest was $2,500 each for the make of truck desired by the Chief Sig- 
nal Officer, who recommended that the latter be purchased, as they 
were " considered far more desirable for use in the aero squadron 
than any other type of truck." On the Chief Signal Officer's further 
recommendation, approved by the Assistant Secretary of War, all 
proposals were rejected, and the two trucks of the maks desired by the 
Chief Signal Officer were obtained by what was considered an open- 
market purchase. 

Ileld^ that the insistence of the Chief Signal Officer for a truck of 
a particular make when trucks of other makes would meet his own 
specifications as to type did not warrant the purchase, without adver- 
tising, of trucks of that make^ and that the fact that a number of deal- 
ers submitted bids was sufficient evidence that the desired type of 
truck could be obtained from other than one dealer, but that, notwith- 
standing the recommendation of the Chief Signal Officer to reject 
all bids and obtain trucks of a particular nmke by an open-market 
purchase, the purchase was actually made as the result of due adver- 
tisement, and that it was doubtless within the discretion of the Sec- 
retary of War to purchase other than of the lowest bidder if such 
purchase was fairly deemed to be in the best interests of the Gov- 
ernment. 

(Comp. Geo. E. Downey, Mar. 8, 1915.) 



TRANSPORTATION: Land grant deductions. 

The Union Pacific Railway Company appealed from the action of 
the xluditor in the matter of disallowances on account of land gi"ant 
deductions in settlement for passenger transportation on Government 
requests for — 

(1) Rejected applicants for enlistment in the Army en route to the 
recruiting station. 

(2) Discharged enlisted men en route to their homes or elsewhere 
after serving sentence as military prisoners. 

(3) Enlisted men of the Army en route to their homes on dis- 
charge, 

(4) Enlisted men of the Army en route to their homes on retire- 
ment. 

(5) Enlisted men of the Army en route to their proper stations 
after having reported from furlough. 

The railway company contended that these classes of persons were 
not troops, within tlie meaning of the land grant acts, and tlierefore 
the deductions made by the auditor Avere unauthorized. 

Ileld^ in affirming the action of the auditor, that the transporta- 
tion of troops as contemplated by the land grant acts applies to the, 
transportation required by the United States for all persons in con- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 485 

nection with its military service, and extends from the beginning of 
the process of securing men for the military service until they are 
returned after severance of said connection to the place where the 
initial steps for entering the service were taken. 
(Comp. Geo. E. Downey, Mar. 24, 1915.) 



DECISIONS OF THE COURTS. 

(Digests prepared in the office of the Judge Advocate General.) 

CONTRACTS: Damages for breach, and deduction from moneys due under 
subsequent contract. 

A contractor for furnishing certain material for the use of the 
Panama Canal Commission in the construction of water systems in 
the Canal Zone failed to deliver the materials on contract time, the 
last delivery being about three months overdue. On account of such 
delay, the water systems were installed three months later than they 
otherwise would have been, and in consequence suitable drinking 
water had to be transported to the cities involved in tank cars at con- 
siderable expense. Other expenses were also incurred on account of 
the delayed deliveries. The contractor, however, was paid the full 
amount of his contract without deductions, there being no liquidated 
damage clause in the agreement. A subsequent contract was en- 
tered into between the same parties to furnish like material, and was 
duly performed, but in settlement the Canal Commission deducted 
the sum of $1,000 as damages claimed to have been sustained by the 
United States on account of delay in the performance of the first 
contract. In an action by the contractor to recover, the Government 
set up a counter claim of $8,182.34 as additional damages alleged to 
have been sustained under the first contract due to the delayed per- 
formance thereof. 

Ueld^ that the payment of the whole amount due under the first 
contract was a final settlement of all matters connected with that 
contract, and that the settlement could not thereafter be questioned 
except for fraud or mistake of fact, and there being no evidence of 
either, the counter claim could not be sustained, and the claimant was 
entitled to recover the $1,000 sued for. 

[Camden Iron Works v. United States, No. 30307, Ct. CI., Mar. 
15, 1915.) 



CONTRACTS: Default of contractor; liability of surety; new contract. 

Under a contract dated February 23, 1905, for the construction of 
a building for the United States, the contractor engaged to furnish 
all material and labor, and to complete the building on or before 
September 1, 1905, furnishing a penal bond in the sum of $6,500 for 
the faithful performance of the contract. The United States was 
given the right under the contract, in the case of the contractor's 
default, to complete the work at the contractor's expense, " in which 
event " the contractor and his surety were to be further liable for any 
damages incurred through such default ajid any and all other 
breaches of his contract. The contract required the contractor to be 



486 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

responsible for all damages to the building, whether from fire or 
other causes, during the prosecution of the work and until its ac- 
ceptance, and declared that partial payments were not to be con- 
sidered as an acceptance of any part of the work or material. Under 
the terms of the agreement, the contractor was paid as the work 
progressed an aggregate of $7,895.40. The contractor not only 
failed to complete the work on or before the first of September, but 
failed, after that date, to take such action as would remedy his 
default. On October 27 the United States rejected the work and 
materials and the building as offered for acceptance, and on Novem- 
ber 4, while the contractor was still in possession, it was completely 
destroyed by fire. He took no steps thereafter to rebuild, or to carry 
out the terms of the contract ; whereupon the United States declared 
him in default and confiscated certain materials, etc. About a year 
thereafter, the United States entered into a contract with another 
party for the erection of the desired building on the same site, but 
the building was to be materially different and more expensive. In 
an action against the defaulting contractor and the surety for dam- 
ages, including the recovery of the amount of the progress payments 
with interest, 

Held^ that the surety company's liabilities for all damages became 
fixed upon occurrence of the complete default of the contractor, and 
was not released by the failure of the Government to have the same 
work completed in accordance with the first contract ; that the rights 
and liabilities between the parties, being fixed by the complete breach 
of the agreement, were not to be affected by any subsequent and inde- 
pendent transaction between the Government and third parties, the 
doctrine exonerating the surety on the bond by the public contractor 
in case of a change in the contract having no application. Held fur- 
ther^ that the Government was entitled to interest on the amount of 
the advance payments from the time the work should have been com- 
pleted under the contract, but that the surety company was liable 
as to the interest only for such an amount as accrued from its own 
default in unjustly withholding payment after being notified of the 
default of the principal. 

( United States v. V. S. Fidelity di Guaranty Co.^ decided by the 
U. S. Supreme Court Feb. 23, 1915.) 



PABDON: Not effective until accepted. 

A witness in a grand jury investigation of alleged customs frauds, 
in violation of the Federal Criminal Code, refused to answer certain 
questions, claiming upon his oath that his answers might tend to 
criminate him. Thereupon he was remanded to appear at a later 
date, and upon so appearing he was handed a pardon from the Presi- 
dent, which he was told had been obtained for him upon the strength 
of his testimony before the other grand jury. He declined to accept 
the pardon or to answer the questions which he claimed would tend 
to criminate him. He was then presented by the grand jury to the 
district court for contempt, adjudged guilty thereof and compelled 
to pay a fine of $500. Upon appeal by writ of error to the Supreme 
Court, 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 487 

Held^ that a pardon from the President, to be effective, must be 
accepted by the person to whom it is tendered ; that the tender of a 
pardon from the President does not destroy the privilege of a wit- 
ness against self-crimination, but he may reject the pardon and 
refuse to testify on the ground that his testimony may have an in- 
criminating effect. 

{Burdick v. United States, decided by the U. S. Supreme Court 
Jan. 25, 1915.) 



BULLETIN 18. 

Buu^tinI war department, 

No. 18. J Washington, May 15^ 1915. 

The following digest of opinions of the Judge Advocate General 
for the month of April, 1915, and of certain decisions of the Comp- 
troller of the Treasury and of the courts, is published for the infor- 
mation of the service in general. 
[2255370 C— A. G. O.] 
By order of the Secretary of War. 

TASKER H. BLISS, 
Brigadier General., Acting Chief of Staff. 
Official. : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ARMY RESERVE: Medical treatment of members. 

On the question whether members of the Army Reserve are en- 
titled to medical treatment in military hospitals, 

Held., that there is no authority therefor ; that the status and rights 
of reservists are determined by the Act of August 24, 1912, establish- 
ing the Army Reserve, which Act declares that soldiers are to be 
furloughed to the Army Reserve under conditions therein specified, 
" without pay and allowances," and that the language " without pay 
and allowances " comprehends not only fixed allowances, but those 
of an indirect nature like medical supplies and attendance and hos- 
pital treatment. 

(6-300, J. A. G.; Apr. 10, 1915.) 



DESERTER: Transportation and burial of remains of deserter killed while 
resisting" arrest. 

A soldier on duty at Tientsin, China, as Legation Guard, deserted 
in 1912, and about two years thereafter was arrested by the marshal 
of the United States consular court at Shanghai, China, on the charge 
of desertion. While attempting to escape from such custody, he was 
shot and killed by the prison keeper, and was buried at Shanghai. 
Request was made by the soldier's mother to have the remains re- 
moved to this country for burial at the expense of the United States. 
The usual provision contained in the current Sundry Civil appro- 
priation act (38 Stat., 631) authorized the removal to their homes 
or to a national cemetery at public expense "of the remains of offi- 
cers * * * jjjj(j enlisted men on the Army active list.'''' On the 

488 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 489 

question whether the soldier could be considered as having been on 
the active list at the time of his death within the meaning of this 
legislation, in view of the fact that at such time he was borne on the 
rolls as a deserter, but had not been convicted by a court martial, 

Held^ that for certain purposes the fact of desertion may be deter- 
mined administratively (Dig. Op. J. A. G., 1912, p. 416; 12 Comp. 
Dec, 328) ; that when the charge of desertion is entered, following 
the unauthorized absence of the soldier, he is dropped from the rolls 
of the Army as a deserter, and that this effectively removes him from 
the " active list," to which he is not again restored until he is returned 
to military control and at least taken up as a returned deserter ; that 
in the instant case, as the party had not been returned to the military 
authorities and taken up as a returned deserter, he could not properly 
be regarded as being on the active list at the time of his death, within 
the meaning of the statute in question. 

(5-244.1, J. A. G., Apr. 2, 1915.) 



FOREIGN SERVICE: Limitation as to service in the Philippines and Canal 
Zone. 

As to the proper construction of the following proviso in the Army 
appropriation act approved March 4, 1915 : 

" That on and after October first, nineteen hundred and fifteen, 
no officer or enlisted man of the Army shall, except upon his own 
request, be required to serve in a single tour of duty for more than 
two years in the Philippine Islands, nor more than three years in the 
Panama Canal Zone, except in case of insurrection or of actual or 
threatened hostilities," 

Held^ that this legislation applies to tours of duty entered upon 
before October 1, 1915, as well as those begun on or after that date, 
and that consequently any officer or enlisted man serving in the 
Philippine Islands or in the Canal Zone on or after October 15 [1], 
1914, unless he has requested othei'wise, will come within the limita- 
tions of the act, upon his completion of two j^ears' service in the 
Philippines, or three years' service in the Canal Zone, of his current 
tour of duty. 

(92-400, J. A. G., Apr. 8, 1915.) 



INSURANCE: Packages sent by parcel post. 

An officer of the Medical Department requested that he be fur- 
nished a supply of postage stamps for parcel post insurance pur- 
poses, stating that the stamps were required for insuring packages 
sent by mail containing articles of considerable value. 

Held^ that in the absence of a specific appropriation therefor, the 
stamps could not legally be furnished, the Comptroller having re- 
peatedly ruled against the propriety of government officers incurring 
expenses for the insurance of government property, both upon the 
ground that the appropriations sought to be charged with the ex- 
penses were not available, and because it was against the policy of 
the government to insure its property. 

(5-244, J. A. G., Apr. 5, 1915.) 



490 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

NEGLIGENCE: Pay of enlisted men entrusted to officer, loss of. 

In the payment of a troop of cavalry the commanding officer 
thereof, under authority of Par. 723, Manual for the Pay Depart- 
ment, 1910, received the pay of twenty enlisted men who were on 
detached service. A few days thereafter this officer, preparatory to 
taking advantage of a leave of absence, turned the money over to a 
lieutenant, the next senior officer on duty with the troop. The latter 
officer locked the funds in a desk in his quarters, and they were 
stolen from the desk by an enlisted man, who deserted. A board of 
officers convened to investigate the matter found, as a fact, that the 
loss of the funds was due to negligence on the part of the lieutenant 
in placing them in his desk instead of depositing them in the quarter- 
master's safe. 

Held^ that in the absence of an express provision to the contrary 
an officer whose duty it is to receive pay of absent enlisted men, under 
Par. 269, Manual for the Pay Department, may require the assist- 
ance of subalterns in the perfoiTnance of this duty; that it was 
proper for the commanding officer of the troop, preparatory to going 
on leave of absence, to dispose of the funds as he did ; and that as the 
loss of the funds was due to negligence on the part of the officer to 
whom they were thus properly transferred, the latter should be held 
responsible therefor. 

(72-514, J. x\. G., Apr. 30, 1915.) 



PAY AND ALLOWANCE: Deduction of pay for absence due to mis- 
conduct during prior enlistment. 

The question was presented whether a soldier who was absent from 
duty on account of a venereal disease contracted during a previous 
enlistment, and which was not detected at the time of his reenlist- 
ment, was entitled to pay for the period of such absence, in view of 
the provision of the Act of April 27, 1914 (38 Stat., 353), against 
the allowance of pay to any officer or enlisted man for time absent 
from duty " on account of disease resulting from his own intemperate 
use of drugs or alcoholic liquors or other misconduct." The soldier 
was discharged from his first enlistment in July, 1911, and reen- 
listed in April, 1914. It was suggested by the surgeon that the sol- 
dier was guilty of fraud in connection with his latter enlistment. 

Hcld^ that if the soldier knowingly and wilfully misrepresented 
his physical condition at the time of his 1914 enlistment, and his ac- 
ceptance depended upon his concealment and misrepresentation of 
the true facts, he was guilty of fraudulent enlistment and subject to 
trial by court-martial, as provided by Section 3 of the Act of July 
27, 1892 (27 Stat., 278) ; that the punishment in such cases, if any, 
should be for fraudulent enlistment; that the Act of April 27, 1914, 
was intended to secure good conduct on the part of soldiers in the 
ser^■ice, and not for the purpose of penalizing prior misconduct, and 
was not applicable in the instant case. 

(72-210, J. A. G., Mar. 23, 1915.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 491 

PENALTY ENVELOPES: Furnishing to contractors for shipment of con- 
tract supplies. 

An oiRcer of the Quartermaster Corps inquired whether, in the 
purchase of small articles from a contractor whose obligation was 
completed as soon as the property was ready for shipment, it would 
be permissible to furnish the contractor with penalty envelopes to be 
used in forwarding the supplies by parcel post. It was pointed out 
that if such shipments could be made by parcel post under penalty 
envelopes, it would result in a considerable saving to the Govern- 
ment, it having been the custom in such cases to send the contractor a 
bill of lading covering the shipment at Government expense. 

Held, that section 3 of the Act of March 3, 1879 (20 Stat., 352), 
providing in part " That any Department or officer authorized to use 
the penalty envelopes may inclose them with return address to any 
person or persons from or through whom official information is de- 
sired, the same to be used only to cover such information and in- 
dorsement relating thereto," is the only instance of specific authority 
for the use of penalty envelopes by private persons, and that accord- 
ing to a familiar rule of construction, it is to be taken as excluding 
their similar use in any other connection. See par. 837, A. R. 1913. 

(22-020, J. A. G., Apr. 10, 1915.) 



POST EXCHANGES: Dividends. 

General Order No. 109, W. D., 1911, prescribes the method of dis- 
tribution of net profits of post exchanges. When a dividend is de- 
clared, the fund is required to be distributed as therein directed, and 
as to Engineers, it is specified : " Where members belong to the Corps 
of Engineers, it will be paid to the Engineer Band." On the question 
whether a camp exchange at Texas City, Tex., consisting of a com- 
pany or certain companies of Engineers was within the scope of this 
regulation and required to pay a share of net profits to the Engineer 
Band at Washington Barracks, 

Held., that the camp exchange was not a regulation post exchange 
but w^as of an informal character created to meet special conditions 
where the advantages of a regular post exchange were not accessible ; 
that as exchanges of this character are not required to comply with 
the general regulations in respect to their organization and opera- 
tion, it would not be consistent to hold that they are within the 
operation of the provision concerning the payment of dividends. 

(40-104.5, J. A. G., Apr. 19, 1915.) 



TRANSFER: Of property no longer needed for purpose for which it was 
purchased. 

It was proposed to transfer to the Signal Corps in Alaska a team 
of dogs belonging to the Bureau of Fisheries, Department of Com- 
merce, at Copper Center, Alaska, for which the Bureau of Fisheries 
had no immediate use. On the question whether the dogs could be 
subsisted from the appropriation for "Regular Supplies, Quarter- 
master Corps," which in terms provides for the subsistence of ani- 
mals " of the Quartermaster Corps." 



492 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Held^ that it being well settled that when public property has 
ceased to be of use for the specific purpose for which it was pur- 
chased, it may lawfully be loaned or transferred to some other bureau 
or department of the Government where it can be utilized in the pub- 
lic service, such transfer not being regarded as in conflict with Sec. 
3678, Eevised Statutes (Dig. Op. J. A. G., 1912, pp. 31-32), the ap- 
propriation for " Regular Supplies, Quartermaster Corps " should 
be regarded as available for the subsistence of the dogs so trans- 
ferred, it being understood that the dog team could be used advan- 
tageously by the Signal Corps in addition to the teams of this char- 
acter alreadv supplied by the Quartermaster Corps. 

(80-138; 5-243, J. A. G., Apr. 27, 1915.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in tlie office of the Judge Advocate General.) 

COTJRT-MARTIAL SENTENCES: Scope of sentence forfeiting pay; extra 
duty pay. 

A forfeiture of 20 days' pay was imposed upon a private of the 
Army Service Detachment, U. S. Military Academy, by a summary 
court martial. Upon the question whether the sentence included 
extra duty pay of 35 cents a day as laborer, 

Tleld^ that extra duty pay depends entirely upon whether or not 
the soldier is assigned to such duty as gives him the extra duty pay 
status; that it is contingent upon an assignment by order, and uncer- 
tain as to time; that the sentence of the court martial should be 
absolute, definite, and certain, and not dependent upon any con- 
tingency, and that it should be presumed that the pay which the court- 
martial had in mind was the soldier's monthly pay, as fixed by law; 
that while the allowance per day for the performance of extra duty 
is designated as " pay," it is nevertheless in the nature of an allow- 
ance {Sherburne v. United States^ 16 Ct. Cls., 491), and its payment 
is dependent upon the contingency of assignment to duty in orders, 
etc., and should not, therefore, be regarded within the sentence to 
forfeit 20 days' pay in the case presented. 

(Comp. Geo. E. Downey, Jan. 20, 1915.) 

Under authority of the Act of September 27, 1890 (26 Stat., 491), 
which provides " That whenever by any of the Articles of War for 
the government of the Army the punishment on conviction of any 
military offense is left to the discretion of the court martial the 
punishment therefor shall not, in time of peace, be in excess of a limit 
which the President may prescribe," the President, by the existing 
Executive Order No. 2043, of September 5, 1914, Article II, has enu- 
merated the several military offenses for which a maximum limit of 
punishment is prescribed, with the character of the punishment stated. 
For many of the offenses, the punishment prescribed involves for- 
feiture of so many days' pay, or, for example, under the 20th Article 
of War, for the offense of disrespect to a commanding officer, the 
punishment may not exceed " confinement at hard labor for six 
months, and forfeiture of two-thirds of his pay per month for a like 
period." 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 493 

On the questions as to what is to be considered as " pay " in such 
cases, 

Held^ that where a court-martial sentence directs the forfeiture of 
pay it means the rate of compensation as specifically fixed by law 
as pay proper, and does not refer to contingent allowances, extra 
duty pay, and the like ; that the term " pay per month " used in 
Executive Order No. 2043 means the monthly rate of pay fixed by 
law for the grade in the service of the convicted person, and that a 
forfeiture of one day's pay, for example, requires that one-thirtieth 
of the monthly rate should be withheld. Held further^ that where 
the sentence of forfeiture is to apply to future pay, and the rank of 
the soldier is changed during the continuance of such forfeiture 
period, resulting in a change in his rate of pay, there should be a 
corresponding change in the amount of the forfeiture. 

(Comp. Geo. E. Downey, Apr. 28, 1915.) 



HEAT AND LIGHT: Commutation thereof commencing July 1, 1915. 

A provision contained in the Army appropriation act for the fiscal 
year 1916 provides: 

" For commutation of' quarters, and of heat and light, to commis- 
sioned officers, acting dental surgeons, veterinarians, pay clerks, 
members of the Nurse Corps, and enlisted men, $640,000." 

Held^ that this provision is to be read in <^onnection with the exist- 
ing legislation of March 2, 1907 (34 Stat., 1167), providing that the 
heat and light actually necessary for the authorized allowance of 
quarters for officers and enlisted men shall be furnished at public 
expense, and that commutation of these allowances should therefore 
be in accordance with the commuted value thereof as determined and 
set forth, as to heat, in par. 1036, A. R., 1913, as amended by C. A. E. 
21, Feb. 19, 1915 ; and as to light, as set forth in the following table 
(subject to the changes indicated in Sec. 3, par. 1057, A. R., 1913, 
as amended by C. A. R. 19, Feb. 10, 1915, for stations in Alaska, the 
tropics, and the south temperate zone) : 



Rooms. 


April to 

September, 

inclusive, 

value per 

month. 


October to 
March, in- 
clusive, 
value per 
month. 


Rooms. 


April to 

September, 

inclusive, 

value per 

month. 


October to 
March, in- 
clusive, 
value per 
month. 


10 


S3. 24 
2.88 
2.70 
2.40 
1.98 


¥5. 16 
4.62 
4.32 
3.84 
3.18 




$1.62 

1.44 

1.26 

.90 

.72 


$2. 58 
2.28 
2.04 
1.44 
1.08 


9 


4 


8 


3 


7 


2 


6 


1 







(Comp. Geo. E. Downey, Apr. 28, 1915.) 

Note. — The rates indicated are for the commutation of heat and 
light for the fiscal year 1916 for the number of rooms actually occu- 
pied, but not exceeding the authorized allowance. Voucher forms 
therefor are under consideration by the Comptroller and will be 
acted upon in due course. 



494 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

TRANSPORTATION: Procuring' ticket in variance with transportation 
request. 

A government transportation request called for an ordinary pas- 
senger ticket at the lowest limited rate from Los Angeles, Cal., to 
Portola, Cal., which rate w^as $26.45. This request was used by a 
government employee wdio requested the railroad agent to furnish a 
ticket reading via San Francisco, which was done, and the railroad 
company charged $30.65 therefor, the regular rate for the longer 
route. 

Held, that the Government was liable only for the payment for 
the service which the transportation request called for, and that the 
employee who requested the agent to issue the ticket by a longer 
route should be required to pay the difference to the railroad com- 
pany. Held further, that if, in any case, transportation in excess of 
that indicated on the transportation request is required in the inter- 
ests of the Government, the traveler should pay the excess cost and 
present a claim for reimbursement. 

(Comp. Geo. E. Downey, Ai»r. 6, 1915.) 



TRANSPORTATION: Loss of ticket procured on transportation request; 
liability. 

The Quartermaster at Boston, Mass., issued a request for trans- 
portation by a certain railroad for two persons, accepted applicants 
for enlistment, from Boston, Mass., to New Rochelle, N. Y., a re- 
cruiting depot. The request w^as duly presented and two first-class 
limited tickets were issued thei^eon. One of the men used his ticket, 
but the other reported that he lost his. The Auditor disallowed the 
railroad company's claim for the value of the lost ticket. The com- 
pany contended that although its records did not indicate that the 
ticket had been used, the ticket was valid for the use of the holder 
at any time and may have been used for but a portion of the dis- 
tance, in which event such serxdce would be represented only by the 
conductor's cancellations, and would not appear of record. 

Held, that transportation requests are used by the United States 
the same as cash in procuring transportation ; that the railroad com- 
pany having issued the ticket called for by the request, the legal 
presumption was that the company furnished the service and such 
presumption could be rebutted and claim made for refund only by 
the production of the unused ticket. Held further, that the person 
to whom the ticket was furnished should have been charged with the 
cost thereof at the time and that the amount should be recovered 
from him if possible. 

(Comp. Geo. E. Downey, Apr. 30. 1915.) 



DECISIONS OF THE COURTS. 

(Digests prepared in the Office of the Judge Advocate General.) 

HABEAS CORPUS: Fraudulent enlistment of minor. 

A woman whose son fraudulently enlisted in the Army by falsely 
stating that he was over 21 years of age instituted habeas corpus 



- DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 495 

proceedings for the soldier's discharge on the ground that the enlist- 
ment was void under Sec. 1117, Kevised Statutes, which provides: 

" No person under the age of twenty-one years shall be enlisted 
or mustered into the military service of the United States without 
the written consent of his parents or guardians: Provided^ that such 
minor has such parents or guardians entitled to his custody and 
control." 

After the service of the writ of habeas corpus, but before the hear- 
ing thereon the soldier was arrested by the military authorities for 
fraudulent enlistment in violation of the 62d Article of War. Sec- 
tion 761, Revised Statutes, provides relative to habeas corpus pro- 
ceedings that — 

" The court, or justice, or judge shall proceed in a summary way 
to determine the facts of the case, by hearing the testimony and argu- 
ments, and thereupon to dispose of the party as law and justice 
require.'''' 

Held., that while the parent or guardian who had not consented 
to the minor's enlistment could reclaim the custody of the minor, 
yet, in view of Sec. 761, Revised Statutes, it was deemed that law 
and justice did not require that he be taken from the military authori- 
ties until he had made amends to the United States for his offense 
of fraudulent enlistment. 

{United States ex rel. Laikund v. WilUford (C. C. A.), 220 Fed., 
291.) 

ARMY OFnCERS: Promotion; injunction suit. 

The act of April 1, 1890 (26 Stat., 502), requires that promotions 
to every grade in the Army below the rank of brigadier general 
" shall, subject to the examination hereinafter provided for, be made 
according to seniority in the next lower grade." Plaintiff, a senior 
officer in the grade of Major, brought suit to enjoin the Secretary 
of War " from taking any action or steps of whatsoever kind in 
violation of plaintiff's right to be nominated by the President of the 
United States to the Senate thereof " to fill a vacancy in the grade 
and rank of Lieutenant Colonel. 

Held, that no duty is imposed upon the Secretary of War in respect 
of the section of the act in question, which relates only to the action 
of the President; that the attempt to invoke judicial interference 
was in fact an attempt to reach the Executive through his representa- 
tive, which may not be done ; and that there was, therefore, no basis 
for judicial action. 

{liay V. Garrison., 42 D. C. App., 34.) 



BULLETIN 21. 

Bulletin 1 WAR DEPARTMENT, 

No. 21. J Washington, June 16, 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of May, 1915, and of certain decisions of 
the Comptroller of the Treasury, is published for the information 
of the service in general. 
[2255370 D— A. G. O.] 
Bt order of the Secretary of War : 

H. L. SCOTT, 
Major General, Chief of Staff. 
Official, : 
H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

A CORRECTION. 

On page 4 of Bulletin 18, War Department, 1915, in the digest of 
an opinion on the subject "Foreign Service: Limitation as to service 
in the Philippines and Canal Zone," the date October 15, 1914, should 
be October 1, 1915. 



CONTRACTS: Default of contractor; liability of surety. 

In due course after award was made to the lowest bidder for fur- 
nishing supplies for the Array, contract was forwarded to the bidder 
for execution, who about the same time went into bankruptcy and 
turned the contract papers over to the surety company, surety for 
the faithful execution and performance of the contract. The surety 
company was given notice and afforded an opportunity to make 
satisfactory arrangements as to carrying out the principal's obliga- 
tion. No action having been taken by the surety company, new bids 
were invited resulting in an award to the lowest bidder at hn advance 
aggi-egating $957.87 over the first award and $550 over the next 
lowest bid under the first advertisement. The surety company of- 
fered $550 in settlement of its liability, claiming that the Govern- 
ment should have awarded the contract to the next lowest bidder 
under the first advertisement, and that the amount offered was ac- 
cordingly the amount for which the surety was only liable. 

Held, that the acceptance of the one bid in the first instance was a 
rejection of all other bids; that the other bidders were thercb}'- re- 
lieved from any obligation to enter into a contract; and that the 

496 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEBAL. 497 

surety company was therefore liable to the Government for the entire 
excess cost of the supplies under the new award, amounting to $975.87, 
due to its principal's default. 
(76-222, J. A. G., May 13, 1915.) 



CONTRACTS: Procedure on default; surety. 

A contractor for furnishing oats for the Army having defaulted in 
making a delivery, a supply was purchased in the open market in 
accordance with the terms of the contract at a cost aggregating over 
$500 in excess of the contract price. The contracting officer advised 
the Department that there was due the contractor $87.03 for oats 
delivered. on a previous order, and he requested instructions as to 
whether this sum should be paid to the contractor and the whole 
amount of excess cost of procuring oats elsewhere, due to this and 
any other default, collected from the surety, and in this event whether 
he should take steps to make the collection. 

Ueld^ that the $87.03 referred to should be checked into the Treas- 
ury by the contracting officer as part collection of the amount due the 
Government by the contractor, this being justified under the common 
right of set-off, and that he should promptly notify both the con- 
tractor and the surety of the default and the amount of their liability 
resulting therefrom, less the set-off referred to, and that upon their 
failure to make prompt settlement the matter should be referred to the 
Solicitor of the Treasury, through the War Department, who has 
charge of the enforcement of bond obligations. 

(76-742, J. A. G., May 27, 1915.) 



COURT-MARTIAL SENTENCE: Detention of pay in lieu of forfeiture. 

The question was presented whether, in view of Section 2 of Article 
III of the Maximum Punishment Order, which provides " In lieu 
of forfeiture of pay the court may, at its discretion, adjudge deten- 
tion of pay at the rate of one and one-half days' pay for each day of 
pay the forfeiture of which is authorized; but no sentence shall ad- 
judge the detention of more than two-thirds of the soldier'' s pay per 
month for three months^'' the detention of one-half pay per month for 
four months would be permissible, this being as to amoiuit equivalent 
to " two-thirds of the soldier's pay per month for three months." 

Ileld^ that the detention being in lieu of forfeiture, and in two- 
thirds of the amount authorized by statute, the limitation of the Maxi- 
mum Punishment Order should be regarded as applying to the 
amount rather than the period ; and that, therefore, detention of one- 
half pay for four months would not be illegal. 

(30-483, J. A. G., May 17, 1915.) 



DESERTION: Effect of, on position of noncommissioned officer. 

A soldier of the Quartermaster Corps who had been dropped as a 
deserter while a corporal, surrendered on March 15, 1915, and was 
taken up by the Quartermaster Corps as a corporal. The question 
93668°— 17 32 



498 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

as to whether he should have been taken up as a corporal was sub- 
mitted, which involved a consideration of the effect of the omission 
from Par. 277, A. R., by C. A. R. 15, November 19, 1914, of the sen- 
tence, " The desertion of a noncommissioned officer vacates his posi- 
tion from the date of his unauthorized absence." 

Held, that it was intended by the omission of this sentence in the 
revision of Par. 277, A. R , to abolish the provision that noncom- 
missioned officer should vacate his position from the date of his unau- 
thorized alisence and to require that his reduction should be accom- 
plished by administrative action, and that this interpretation should 
be placed upon the paragraph as amended. 

(52-241, J. A. a. May 19, 1915.) 



DETACHED SERVICE: Newly appointed commissioned officers. 

Upon the question as to the legality, under the detached service law 
(37 Stat., 571), of assigning newly appointed commissioned officers 
of field artillery for a preliminary course of training and instruc- 
tion at the School of Fire for Field Artillery, Fort Sill, Okla., and 
attaching them to the instruction or other batteries on duty there. 

Held, that there seemed to be no reason why such a newly ap- 
pointed officer may not be assigned or attached as indicated, pro- 
vided that the regular complement of officers of such organization 
is not thereby exceeded, and that the officer occupy the normal duty 
status with the battery; nor any legal objection to his receiving in- 
struction at the School of Fire when so assigned or attached, so long 
as such instruction does not impair his duty status; but that an at- 
tachment for the purpose of taking the course of instruction which 
is inconsistent with the normal duty status, or an assignment or at- 
tachment of officers to a battery in excess of the complement author- 
ized by law would be a violation of the statute. 

(6-124, J. A. G., May 5, 1915.) 



DETACHED SERVICE: Officer on garrison duty in command of detach- 
ment. 

A battalion of the 14th Infantry having been ordered to garrison 
the posts in Alaska, and Companies A and C of that regiment having 
been directed to take station at Fort Seward, it was further ordered 
that one officer and 50 enlisted men of those companies form a garri- 
son at Fort Liscum. Accordingly, a lieutenant of Company C was 
sent to Fort Liscum with 25 men of his own company and 25 men of 
Company A. He was the only line officer at Fort Liscum. 

Held, that the officer occupied a normal duty status with the de- 
tachment, and that as the 25 men of his own company whom he 
commanded were not separated from their company for the per- 
formance of a duty different from the normal company duty — the 
command of the detachment from Company A being additional duty 
not disturbing his relation to the detachment from his own company 
(Bull. 22, W- D. 1914, p. 25)— the officer should be regarded as on 
duty with his company as required by the detached service law (37 
Stat., 571). 

(6-124, J. A. G., May 19, 1915.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 499 

EIGHT-HOTm LAW: Construction of dredge for Government under con- 
tract. 

The question was submitted for opinion as to whether a dredge 
being constructed by a contractor under a contract with the Govern- 
ment comes within the term " public works " as used in the 8-hour 
law restricting the employment of laborers and mechanics upon 
" public works " to 8 hours a day (27 Stat., 340). Until the promul- 
gation of G. O. 29, Office of Chief of Engineers, October 30, 1912, 
the matter of construction under contract of vessels of the United 
States was not regarded as coming within the term " public works " 
as used in the 8-hour law, this construction being in accordance with 
an opinion of the Attorney General (26 Op. Atty. Gen., 30). In 
that order, the construction was changed, in view of a Supreme Court 
decision (219 U. S., 24), holding that a vessel being constructed for 
the United States was a " puhlic work " within the meaning of the 
statute providing for the protection of persons supplying labor or 
materials for the construction of or repairs upon " any public build- 
ing or fublic work.'''' 

Held., that the statute for the protection of labor and material 
men used a broader term than that used in the 8-hour statute; that 
the change in the construction of the statute promulgated in the 
above-mentioned order was not warranted by the Supreme Court 
decision cited therein, and that therefore, following the opinion of 
the Attorney General, the 8-hour law should be regarded as having 
no application to the construction of the dredge in question. 

(32-213, J. A. G., May 14, 1915.) 



FOREIGN SERVICE : Pay clerks. 

Upon the question whether pay clerks come within the following 
provision of the Army Appropriation Act approved March 4, 1915. 

" That on and after October first, nineteen hundred and fifteen, no 
officer or enlisted man of the Army shall, except upon his own re- 
quest, be required to serve in a single tour of duty for more than two 
years in the Philippine Islands, nor more than three years in the 
Panama Canal Zone, except in case of insurrection or of actual or 
threatened hostilities," 

Held., that pay clerks are included in the term " officer of the 
Army," as used in this statute. 

(92-400, J. A. G., May 4, 1915.) 



HEAT AND LIGHT: Noncommissioned officers occupying- quarters out- 
side of post. 

Certain noncommissioned officers above grade 16 (Par. 9, A. B,.), 
who were entitled to separate quarters, rented and occupied quarters 
" outside of camp " by permission of their commanding officer. 
Upon the question whether they were entitled to reimbursement for 
the usual allowances of heat and light under such conditions, 

Held, that if there were quarters available for these men at the 
post and they elected to rent other quarters for themselves outside 
the post with permission of their commanding officer, they should 
be regarded as having waived their right to heat and light allow- 
ances. 

(72-414, J. A. G., May 1, 1915.) 



500 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

HEAT AND LIGHT : Pay clerks. 

In the Army Appropriation Act for the fiscal year commencing 
July 1, 1915, pay clerks are included in the list of those for whom 
commutation of quarters and of heat and light is provided under 
" Miscellaneous." They are not expressly included, however, in the 
list of officers and others for whom heat and light in kind are pro- 
vided under " RegLilar Supplies," the statutory provision for these 
allowances in kind for the next fiscal year being in terms the same 
as for several years past, in which pay clerks have been held not to 
be included (Bui. 5, W. D., 1915, p. 5). 

Held^ therefore, that in respect of such allowances, the law makes 
provision only for commutation of heat and light to pay clerks which 
is available only when such clerks shall be on a commutation status 
as to quarters, and that no provision is made for furnishing them 
with heat and light in kind. 

(6-134, J. A. G., May 11, 1915.) 



PRISONERS: Introducing money into prison room. 

In a report on the inspection of the Coast Defenses of Chesapeake 
Bay, in August, 1914, by an officer of the Inspector General's De- 
partment, it was said : 

" General prisoners attempting to introduce money into prison 
room are required to contribute same to the mess fund, and such 
amounts are taken up and appear on vouchers to the fund. (Par. 
327, M. G. D.)." 

In explanation of this procedure, the commanding officer said: 

" When prisoners are first confined they are searched and personal 
effects including money taken away from them and returned to 
them upon their release. If a prisoner finds money and upon his 
return to the guard house turns over the money to the prison overseer 
tliis also is credited to the prisoner's account. But when a prisoner 
in some way secures money and attempts to smuggle same into guard 
house or concealing same in some part of his clothing, the money is 
confiscated and credited to prison mess. It is not thought that 
par. 327, M. G. D., applies to this case. Decision is requested." 

Held^ that the practice of confiscating money which general prison- 
ers attempt to introduce or smuggle into the prison room or conceal 
in their clothing is not warranted by law or regulations and should 
be discontinued ; that money so confiscated should be credited to the 
prisoners from whom it was taken and returned to them upon their 
release from confinement ; and that money so confiscated from prison- 
ers already discharged from confinement should be returned to them 
if they can be found. 

(30-824.3, J. A. G., Mar. 3, 1915.) 



PURCHASE OF SUPPLIES: Products sold by civilian employees. 

Paragraph 521, A. R., prohibits the purchase of government sup- 
plies from persons in the military service, except military publica- 
tions and maps approved by the War Department, or the making of 
any purchase or contract in which such person shall be permitted to 
share or receive benefits. 



DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 501 

Beld^ that this provision does not apply to civilian employees in 
the government service, and that it v^as, therefore, permissible to 
purchase from a clerk in the Quartermaster Corps a " proprietary " 
product for cleaning shoes. 

(76-331.4, J. A. G., May 12, 1915.) 



SALVAGE: Rescue of drifting submarine mine. 

A submarine mine belonging to the United States broke from its 
moorings and was found and rescued by fishermen. On the ques- 
tion whether the fishermen were entitled to salvage, 

Held^ that according to the weight of authority, only such property 
as pertains to a ship or its cargo is the subject of salvage, and that 
therefore the rescuers of the submarine mine could not properly be 
paid for their services upon a claim for salvage. 

(6-400, J. A. G., May 4, 1915.) 



TRANSPORT SURGEONS: Subsistence at public expense. 

An officer of the Medical Corps claimed reimbursement for sub- 
sistence during a period that he was on duty as surgeon on an Army 
Transport, such claim being based upon the provision of Par. 164, 
Transport Regulations, for the subsistence of "contract surgeons 
(serving as transport surgeons) ; the ship's officers; * * * in 
their respective messes without charge." 

Eeld^ that there is no statutory authority for the provision in the 
Transport Regulations referred to for the subsistence without charge 
of contract surgeons serving as transport surgeons, or of any com- 
missioned officer of the Medical Corps serving as transport surgeon, 
and that therefore the officer was not entitled to the reimburijement 
claimed. 

(94-100, J. A. G., May 8, 1915.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

CLAIMS: Loss of vehicle hired by Government employee. 

An officer of the Indian Service, Department of the Interior, under 
instructions to visit a certain Indian Reservation for inspection pur- 
poses, hired a team of two horses and buggy to make the trip across 
country. In his return from the reservation, in attempting to ford a 
river after heavy rains, the team was swept down stream, resulting 
in the loss of the buggy, the horses being saved. There was no ques- 
tion that the officer did not exercise reasonable care and judgment in 
attempting to cross the stream. He considered that the interests of 
the Government required that he make the attempt. The owner of 
the buggy put in a claim against the Government for $74 damages. 

lield^ that the officer was in a travel status, and was entitled to 
reimbursement of his actual traveling expenses under the act of 
March 3, 1875 (18 Stat., 452), excepting subsistence; that he was 



502 DIGEST OF opiisnoisrs of the judge advocate general. 

not authorized to hire the team for the Government as its agent and 
presumably did not attempt to do so; that the Government had no 
part in the contract of hire, and there was no privity of contract 
between the United States and the claimant, and that therefore the 
claim was not a valid one against the United States. 
(Comp. Geo. E. Downey, May 26, 1915.) 



PAY: Foreign service increase to officers and enlisted men. 

The Act of June 30, 1902 (32 Stat., 312), provides— 

" That hereafter the pay proper of all commissioned officers and 
enlisted men se*rving bej'ond the limits of the States comprising the 
Union and the Territories of the United States contiguous thereto 
shall be increased ten per centum for officers and twenty per centum 
for enlisted men over and above the rates of pay proper as fixed by 
law for time of peace, and the time of such service shall be counted 
from the date of departure from said States to the date of return 
thereto. 

This' act was modified by the Act of August 24, 1912 (37 Stat., 
576), which provides — 

" That hereafter the laws allowing increase of pay to officers and 
enlisted men for foreign service shall not apply to service in the 
Canal Zone, Panama, or Hawaii or Porto Rico." 

The question was presented as to what items of pay are subject 
to increase for foreign service. Held^ that when Congress by the 
Act of June 30, 1902, supra, qualified the word " pay '' by the word 
" proper " it intended some restriction upon the broad interpretation 
of the word "pay" which might otherwise have been permissible, 
and that neither the law nor tlie construction thereof by the Supreme 
Court in United States v. Mills (197 U. S., 223), justifies the view 
that the increase is payable on additional or extra pay for special 
assignments or temporary service or on items which are more prop- 
erly " allowances " than pay. Decided^ therefore, that foreign service 
increase of pay is not allowable on the following items, — 

(a) Officers. 

1. Additional pay for private mounts. 

2. Additional pay as aid. 

3. 35 ^r increase, aviation service. Act of March 3, 1913. 

4. 25%, 50% and 75% increase, aviation service, act of July 18. 

1914. 

(b) Enlisted men. 

1. Additional pay as expert rifleman, sharpshooter, and marks- 

man. 

2. Additional pay as first class and second class gunner. 

3. Additional pay as casemate electrician, observer, first class, 

plotter, chief planter, chief loader, observer, second class, 
gim commander, gun pointer. 

4. Additional pay as mess sergeant. 

5. 50% increase, aviation service. Act July 18, 1914, except 

" aviation mechanicians." 
This decision will have application to all service rendered after 
June 30, 1915, the postponement of the operation thereof being 



DIGEST OF OPINTOlSrS OF THE JUDGE ADVOCATE GENERAL. 503 

deemed necessary to permit due notice being given disbursing officers 
so as to avoid possible occasions for disallowances. 

(Comp. Geo. E. Downey, May 19, 1915 (21 Comp., 811), as ampli- 
fied by decisions of June 4 and June 10, 1915.) 

Note. — The effect of the above decision is to limit the payment of 
foreign-service increase of pay to pay plus longevity or service pay, 
including additional pay for certificate of merit, and the 50 per cent 
increase granted to enlisted men by the Act of July 18, 1914, who 
hold the rating of " aviator mechanician," and to exclude from the 
computation of said increase all additional items of pay. All deci- 
sions in conflict therewith are overruled. 



TRANSFOIITATION: Shipment of horses on change of station. 

An officer on change of station had household goods and pro- 
fessional books aggregating 9,078 pounds, the shipment of which 
by the Government was more advantageous as a minimum car load 
of 12,000 pounds at $60. The officer also had two horses for ship- 
ment at public expense under Par. 1098, A. K., 1913, which could have 
been shipped in the car with the other property without additional 
cost to the Government for freight charges, provided they had been 
shipped at the normal valuation of not more than $100. Par. 1098, 
A. R., contained the provision — 

" That the shipment shall be made at a valuation of not to exceed 
$100 per animal, unless the owner pays, under the regulations of the 
Quartermaster Corps, the cost incident to increased valuation." 

The officer placed a valuation of $200 each on the horses, as a 
consequence of which, because of the higher rate of classification, it 
was necessary to ship them in a separate car at a cost of $75, but 
upon the same Government bill of lading with the household goods 
and books. 

Ileld^ that as the cost over and above $60 on account of this 
shipment was due to the action of the officer (owner), he, and not 
the Government, should bear the burden of it. 

(Comp. Geo. E. Downey, May 4, 1915.) 



BULLETIN 26. 

Bulletin 1 WAR DEPARTMENT, 

No. 26. J Washington, July 16, 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of June, 1915, and of certain decisions of 
the Comptroller of the Treasury, is published for the information of 
the service in general. 

[2255370 E— A. G. 0-1 
By order of the Secretary or War : 

H. L. SCOTT, 
Major General, Chief of Staff-. 
OrnciAL : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 
DETACHED SERVICE: Commajiding of company by battalion adjutant. 

The question was presented whether a battalion adjutant can ac- 
cumulate eligibility for detached service by commanding a company, 
and, if so, whether he can at the same time draw forage for his horse. 
By the Act of February 2, 1901 (31 Stat., 750), it is provided that 
captains and lieutenants not required for duty with the companies 
shall be available for detail as regimental and battalion staff officers 
and such other details as may be authorized by law. 

Held, that so long as an officer remains battalion adjutant his pri- 
mary duties pertain to that office, with which the normal duties of 
company commander are incompatible; that the detaclied service law 
would require that his primary duty be with his company ; that if he 
were required to perform all the duties of company commander he 
could not perform those mounted duties of battalion adjutant for 
which the law provides forage and mounted pay, and in such circum- 
stance he would not be entitled thereto; that if he performed such 
duties of a company commander as were not incompatible with those 
of battalion adjutant, he would not be entitled to accumulate eligi- 
bility for detached service by reason of such duty as a company com- 
mander. 

(72-350, J. A. G., June 15, 1915.) 



DETACHED SEBVICE: Detail of a major of infantry as captain of infantry 
team, national matches. 

The Act of April 27, 1914 (38 Stat., 357), forbids the detachment 
for duty of any kind of any colonel, lieutenant colonel, or major of 
the line who has not been actually present for duty for at least two 

504 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 505 

of the last preceding six years with a command composed of not less 
than two troops, batteries or companies of that branch of the Army 
in which he holds a commission, and provides: 

" That temporary duty of any kind hereafter performed with 
United States troops in the field for a period or periods the aggregate 
of Avhich shall not exceed sixty days in any one calendar year 
* * * shall * * * hereafter be- counted as actual presence 
for duty with such organization or command." 

On the question whether a major of infantry who was not eligible 
for detached service could legally be detailed as captain of the in- 
fantry team for the national matches at Jacksonville, Fla., during 
October, 1915, which would necessitate his detachment for about 50 
days, 

Held^ that the training of an infantry rifle team does not come 
within the definition of duty with troops in the field contemplated 
by the statute, but is more nearly allied to garrison instruction ; that 
it is field service only in the sense that the duty is performed out of 
doors and involves the use of arms, being similar to training in rifle 
fire upon a range, an adjunct to a post, which service is not regarded 
as " field service " ; that therefore the proposed assignment could not 
be counted as duty with troops within the meaning of the ^ct of 
April 27, 1914. 

(6-124, J. A. G., June 5, 1915.) 



LINE OF DUTY: Soldier stabbed to death in altercation in which, he was 
the aggressor. 

Following a dispute between a corporal and a private, between 
whom there had been ill feeling for some time, the former, after call- 
ing the private a vile name, threw a bucket of water upon him, 
whereupon the private stabbed his assailant with a case knife, kill- 
ing him. 

Held^ that as the corporal's death was the result of an altercation 
in which he was the aggressor and therefore guilty of an infraction 
of military discipline, his death should be regarded as having oc- 
curred as the result of his own misconduct and not in line of duty. 

(54-022.1, J. A. G., June 30, 1915.) 



MEDICAL TREATMENT: Expenses for services of osteopathic physician. 

An officer of the Army on duty without troops incurred an expense 
of $20 for osteopathic treatment and submitted vouchers for pay- 
ment of the account, assuming that his procedure was authorized by 
Par. 1476, A. R., which provides in part that when " medical treat- 
ment " is required by an officer on duty without troops and it can not 
otherwise be had, he may " employ the necessary civilian service to 
furnish the same, and just accounts therefor will be paid by the 
Medical Depai-tment." 

Held^ that osteopathic treatment is not " medical treatment " with- 
in the meaning of the regulation ; that as the Medical Department 
does not provide for osteopathic treatment through its own organiza- 
tion, it is not to be presumed that the regulation is susceptible of an 



506 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

interpretation that will authorize it ; that M^ith the sanction of Con- 
gress, the Medical Department of the Army adheres to the ancient 
school of medicine and surgery ; and that therefore all persons in the 
Army service who require the services of a civilian physician at pub- 
lic expense are limited to the procurement of a physician whose 
methods of treatment are properly termed the practice of medicine 
and surgerv. 

(6-227.6,V. A. G., June 16, 1915.) 



PAY AND ALLOWANCES: Forage allowance to retired oflS.cers assigned 
to active duty. 

A retired officer of the Army was detailed, with his consent, on 
active duty in the Army War College as translator, and the ques- 
tion was presented wdiether he was entitled to forage for his private 
mount while on such duty. By the Acts of June 17, 1878 (20 Stat., 
150), and February 24, 1881 (21 Stat., 347), forage allowance is 
given to officers who " are required by law to be mounted and actu- 
ally keep and own their animals." 

Held^ that as the law does not indicate what officers are " required 
to be mounted," it rests with the Secretary of War to designate them ; 
that forage for private horses is not a part of the allowances to 
which an officer is entitled irrespective of the duty to which he is 
assigned ; that the allowance for forage is not a part of the " full 
pay and allowances " of a retired officer and that he is not entitled 
thereto unless it has been decided by the Secretary of War that he is 
performing duty which requires him to be mounted or is employed 
in one of the capacities mentioned in Paagraph 1272 A. R. 

(88-570, J. A. G., June 29, 1915.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

GRATUITY FAY: On death of soldier, designation of beneficiary. 

An enlisted man who had duly designated a friend as beneficiary 
to whom pavment should be made of the six months' gratuity pay 
provided by'the Act of May 11, 1908 (35 Stat., 108), and Par. 1385, 
A. R., subsequently married, but did not thereafter change the desig- 
nation of his beneficiary " by filling up and forwarding to The 
Adjutant General of the Army another blank of the prescribed 
form," in accordance with Par. 1385, A. R. The soldier, while on the 
active list, died, leaving a will by which, after making certain spe- 
cific bequests, he disposed of " all the balance of my estate both 
personal and real, and all debts or money that is due me from any 
source " to his wife and another person. 

Held^ that the will did not operate to change the designation of 
the soldier's beneficiary. 

(Comp. Geo. E. Downey, June 7, 1915.) 



DIGEST or OPINIOISrS OF THE JUDGE ADVOCATE GENERAL. 507 

STATE LAWS: Expenses for inspection of horses. 

In carrying out instructions of the Quartermaster General of 
January 9, 1912, in regard to complying with State sanitary require- 
ments governing the admission of live stock, the proper military 
authorities deemed it necessary in connection with the shipment of 
horses and mules from Vancouver Barracks, Wash., to points in Cali- 
fornia to engage the services of a veterinarian at Vancouver to in- 
spect the animals and issue health certificates therefor. The Auditor 
for the War Department disallowed the payment to the veterinarian 
under the supposed authority of previous decisions of the Comp- 
troller (21 Comp. Dec, 450, and others there cited), holding in sub- 
stance that the instrumentalities of the United States employed in 
its proper functions are not subject to taxation by a State and that 
the requirement of the State law of the evidence of the inspection of 
horses " does not make it the carrier's duty to make or procure the 
inspection of Government horses en route." 

Held^ that where the Government acquiesces in the requirements 
of State laws in this regard and makes its own arrangements for 
inspection, as was done in the instant case, the expense therefor is 
properly payable from Army appropriations, and that the decisions 
relied upon by the Auditor were not applicable. 

(Comp. Geo. E. Downey, June 12, 1915.) 



TEANSPORTATION: Land-grant deductions for civilian employees. 

In the settlement of the accounts of the Atchison, Topeka & Santa 
Fe Railway Company for transportation service, the Auditor for the 
War Department disallowed $36.58 as land-grant deductions from 
claim for the transportation of two civilian employees of the Signal 
Corps from San Diego, Cal., to Washington, D. C. On appeal to the 
Comptroller, the company contended that — 

" Civilian employees of this branch of the Army are not a part 
of the military forces of the United States subject to the orders of 
the Secretary of War, and can in no way be classed as troops of the 
United States, under the meaning of the land-grant acts. Such 
transportation is therefore not subject to land-grant deduction." 

Held, that by the Act of February 2, 1901 (31 Stat., 748), the 
Signal Corps became a part of the Army; that it has been held for 
more than thirty years that the civilian employees of the Army are 
troops within the meaning of the land-grant acts, and that therefore 
the deduction was properly made by the Auditor. 

(Comp. Geo. E. Downey, June 24, 1915.) 



BULLETIN 30. 

Bulletin 1 WAR DEPARTMENT, 

No. 30. J Washington, August 20^ 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of July, 1915, and of certain decisions of 
the Comptroller of the Treasury, is published for the information 
of the service in general. 
[2255370 F— A. G. O.] 

By ORDER OF THE SECRETARY OF WaR : 

TASKER H. BLISS, 

Brigadier General^ Acting Chief of Staff. 
Official. : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ACCOUNTS.: Disposition of certified checks received as guaranties. 

In the Comptroller's decisions of January 16, 1913 (19 Comp. 
Dec, 442), and January 9, 1914 (20 Comp. Dec, 479), it was held 
in substance that all moneys collected by disbursing or collecting 
officers of which the correct amount due the Government could not 
be determined at the time of receipt, and refundment is involved, 
or moneys held in trust by an officer as agent of the Government 
and not otherwise provided for by law or Treasury regulations, to 
be subsequently returned in whole or in part to the depositor, should 
be accounted for to the Auditor as a special deposit account. 

Held., that the said decisions of the Comptroller do not require 
that certified checks accompanying proposals be deposited to the 
credit of the Treasurer of the United States, since such checks do not 
lepresent money belonging to the United States, but are merely a 
form of guaranty which the contracting officer may retain in his 
l)ossession until the proper time to return them to the depositors or 
imtil collection is required in case of the successful bidder upon 
default — this being the practice authorized by paragraph 535, A. R., 
1913. 

(12-124, J. A. G., July 28, 1915.) 



DESERTION: Effect of disapproval of court-martial sentence as to expenses 
for reward and transportation. 

An enlisted man upon trial for desertion was found guilty, but the 
reviewing authority disapproved the sentence because no proper 
evidence was introduced to show the time and place of apprehension. 

DOS 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEBAL, 509 

Helcl^ that the soldier was entitled to reimbursement of the amount 
stopped against his pay for payment of the reward for his appre- 
hension (127 A. R., 1913), but that he was properly chargeable with 
the cost of his transportation from the place of his trial to the sta- 
tion of his organization, which station had been changed during his 
unauthorized absence, the travel incident to the charge of desertion 
and for which the soldier was not liable (127 A, R., 1913), having 
ended at the place of his trial, regardless of whether this was his 
proper station or elsewhere. 

(26-206, J. A. G., July 24, 1915.) 



HEAT AND LIGHT COMMUTATION: Allowances when quarters are 
rented at officer's own expense. 

In the Army appropriation act for the fiscal year 1916, provision 
was made for commutation of heat and light for officers and enlisted 
men, and the Act of March 2, 1907 (34 Stat., 1167), provides that 
their heat and light allowances shall be furnished under regulations 
prescribed by the Secretary of War. 

Held^ tha^ under the regulations prescribed (Par. 1036 and Par. 
1057, A. R., 1913, as amended), officers and enlisted men on tem- 
porary duty on the Mexican border who occupy with their families 
quarters rented at their own expense are entitled to their regular 
allowances of commutation of heat and light therefor. 

(72-313, J. A. G., July 16, 1915.) 



MILITIA: Injury to laborer on rifle range; liability. 

A laborer employed on a militia rifle range was injured in the 
course of his employment and the question was presented, in connec- 
tion with his claim for an award of compensation, as to whether he 
was an employee of the State or of the Federal Government. 

Held, that while laborers employed on militia rifle ranges are paid 
from federal appropriations (R. S., 1661, as amended), and by a dis- 
bursing officer of the United States (32 Stat., 777), they are neverthe- 
less selected, hired and discharged by the State, thus evidencing such 
plenary control over them as to bring them within the relation of 
master and servant, employer and employee, and that therefore the 
laborer was to be regarded as an employee of the State, rather than 
of the Federal Government. 

(16-600, J. A. G., July 20, 1915.) 

MARINE CORPS: Convicted enlisted man in Army service, allowances on 
discharge. 

An enlisted man of the Marine Corps during the service of his 
organization with the Army was sentenced to dishonorable discharge 
and imprisonment by an Army court-martial. At the expiration of 
his term of imprisonment the question was presented as to whether 
he was entitled to transportation and the usual gratuities of clothing 
and cash payable from Army appropriations. 

Held, that the provisions of the Army appropriation act in regard 
to transportation, clothing and cash for discharged prisoners are 
sufficiently broad therefor, and that as the law does not provide for 



510 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the return of prisoners of the Marine Corps convicted by an Army 
court-martial while serving with the Army under Section 1621, 
R. S., to the jurisdiction of the Navy Department where they nor- 
mally belong, they remain under the jurisdiction of the War Depart- 
ment for all purposes of punishment and discharge the same as 
similarly convicted enlisted men of the Army, including the allow- 
ance of transportation, clothing and cash upon discharge. 
(30-821.1, J. A. G., July 3, 1915.) 



OFFICEES: Restoration of, from retired list to active list. 

In respect to an officer who was restored to the active list from the 
retired list by the Act of July 17, 1914 (38 Stat, 512), the question 
was presented upon his restoration to his former rank under the Act 
of March 4, 1915 (38 Stat., 1068), as to whether he should be carried 
as an extra officer. The Act of March 4, 1915, referred to, authorizing 
the President under specified conditions to transfer officers from the 
retired list to the active list, contained the provision : 

" That such officer shall be transferred to the place on the active list 
which he would have had if he had not been retired, and shall be car- 
ried as an additional number in the grade to which he may be trans- 
ferred or at any time thereafter promoted ; * * * Provided fur- 
ther^ That any officer who may have already been transferred from 
the retired list to the active list shall receive the benefits of this act." 

Held, that the provision that officers restored under the Act of 
March 4, 1915, shall be carried as additional numbers, indicates an 
intention on the part of Congress to bring about the restoration of 
such officers to their former rank without interfering with the rights 
of promotion that had accrued to officers who had remained in the 
service, and that while the Act does not expressly provide that an 
officer theretofore restored should be carried as an_ additional number, 
it evidently was the intention of Congress that it should have that 

(8&-260, J. A. G., July 8, 1915.) 



TRANSPORT SERVICE: Stowaways. 

A citizen of Honolulu, H. T., presented a bill for $3.30 for subsist- 
ence furnished to three stowaways taken off the United States trans- 
port at Honolulu, 

Tleld^ that the bill was properly payable from the appropriation 
for the subsistence of the Quartermaster Corps. 

(94-130, J. A. G., July IT, 1915.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Difiosts prepared in the office of the Judge Advocate General.) 

CONTRACTS: Delay in making award. 

The Navy Department advertised for proposals for furnishing, 
among other things, 1,000 rolls of toilet paper to the Naval Academy, 
the bids to be opened June 23, 1914. The Old Dominion Paper Com- 
pany submitted a proposal to furnish and deliver within thirty days 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 511 

of the date of an order the required paper at a given price. Awards 
were generally made within a few days after the opening of the bids 
but no award was made for the toilet paper until September 10, 1914, 
when the Old Dominion Paper Company was advised that its bid 
was accepted and an order was given for the paper. In the meantime 
conditions in the paper market had radically changed and the paper 
company refused to furnish the paper in accordance with its bid. 
Thereupon the paper was purchased elsewhere at a higher price. 

Held, that the department's delay in making the award was un- 
reasonably long in view of its usual practice ; that it is well settled 
law that where no time is fixed within which an offer is to be accepted 
it will lapse after the expiration of a reasonable time; and that there- 
fore the company was not liable for the difference in the cost of the 
paper between the price named in its bid and the price paid by the 
Government for it elsewhere. 

(Comp. Geo. E. Downey, July 9, 1915.) 



HOSPITAL FUND: Cost of transportation of supplies purchased from; 
reopening settled accounts. 

Under a practice of many years standing the Quartermaster Corps 
paid the freight charges on hospital supplies purchased from the 
hospital fund at Fort Bayard, N. Mex. In the settlement of the 
Quartermaster's accounts covering a portion of the year 1914, the 
Auditor disallowed such payments on the ground that the expenses 
were properly payable from the hospital fund. Upon review of the 
Auditor's action and also as to whether " the military authorities 
should be called upon to refund any sums heretofore paid for the 
transportation of articles purchased out of the hospital fund at Fort 
Bayard, N, Mex., or elsewhere." 

Held^ that the payment, from funds appropriated for the transpor- 
tation of the Army, of the freight charges on hospital supplies pur- 
chased from the hospital fund resulted in augmenting the hospital 
fund to that extent and was without authority of law, such charges 
being properly payable from the hospital fund from which the sup- 
plies were purchased. Held further, that this rule should not be 
applied retrospectively so as to disturb closed accounts, but should be 
applied to any incomplete or open transaction. 

(Comp. Geo. E. Downey, Aug. 4, 1915.) 



MONEY EXCHANGrE: Salaries of officers serving abroad. 

The Army appropriation Act of March 4, 1915, for the fiscal year 
1916, provides: 

" For payment of exchange of acting quartermasters serving in 
foreign countries * * * $600." 

In considering the application of a similar provision in the Army 
appropriation Act for the fiscal year 1914 (37 Stat., 709), 

Held, that the purpose of said provision was to secure special dis- 
bursing agents of the Quartermaster Corps against loss in the cashing 
or sale of their official checks issued to obtain funds with which to 
make authorized disbursements, including their own and other sal- 
aries ; that officers serving abroad if paid in local currency are entitled 



612 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

to be paid the equivalent of their salaries expressed in United States 
money and that the difference between this equivalent and what the 
local currency costs represents the cost of exchange for which the 
disbursing officer is entitled to credit in his accounts. 
(Comp. Geo. E. Downey, July 16, 1915.) 



QUARTERS, HEAT, AND LIGHT: Allowances to enlisted men on fur- 
lough, or temporary duty in the field. 

By the Act of March 4, 1915 (38 Stat, 1069), appropriation was 
made for the payment of commutation of quarters, heat and light to 
enlisted men of the Army, and as to quarters it was provided : 

" That hereafter, at places where there are no public quarters avail- 
able, commutation for the authorized allowance therefor shall be 
paid * * *^ when specifically authorized by the Secretary of 
War, to enlisted men at the rate of $15 per month, or in lieu thereof 
he may, in his discretion, rent quarters for the use of said enlisted men 
when so on duty." 

The Act of March 2, 1907 (34 Stat, 1167), provides: 

" That hereafter the heat and light actually necessary for the 
authorized allowance of quarters for * * * enlisted men shall 
be furnished at the expense of the United States under such regu- 
lations as the Secretary of War may prescribe." 

Held^ that an enlisted man entitled to commutation of quarters at 
his regular station does not lose the right thereto while absent on fur- 
lough or temporarily absent on duty in the field, and that if his 
family continue to occupy his quarters during his absence he is en- 
titled to commutation of heat and light also, the soldier being re- 
garded as constructively at his regular station during said temporary 
absence. 

(Comp. Geo. E. Downey, Aug. 3, 1915.) 



TRANSPORTATION: Enlisted man on furlough ordered to duty. 

A noncommissioned officer Avhose organization was stationed at 
Madison Barracks, N. Y.^ upon being relieved by orders from the 
War Department from duty with the New Hampshire National 
Guard at Concord, N. H., December 31, 1913, was granted a furlough 
until February 28, 1914, " with permission to go ;" it being fur- 
ther specified that " the close of the last day of this furlough must 
find him at such place as the War Department may direct." The 
soldier went to Chicago, and before the expiration of his furlough, as 
extended, he was directed by the War Department March 18, 1914, as 
follows : 

" You will report on or before the expiration of your furlough as 
extended to the Commanding Officer, Madison Barracks, N. Y., for 
duty." 

The soldier applied to the military authorities at Chicago for tranS: 
portation but was advised, in view of doubt as to whether he was 
entitled thereto, to pay his own fare and apply for reimbursement, 
which he did. 

Held^ that the principle applicable was to be found in par. 1294, 
A. R., 1913, reading as follows: "An officer relieved from duty at a 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 513 

station and granted leave of absence before assignment to another, 
who receives an order of assignment before expiration of leave, is 
entitled to mileage from the place where he receives the order to his 
new station " ; that while this regulation applies in terms to officers 
only, the principle should govern this case and that therefore the 
soldier was entitled to reimbursement of his travel expenses in an 
amount equal to what it would have cost the Government to trans- 
port him from the place where he received the order of March 18, 
1914, to his proper station. 

(Comp. Geo. E. Downey, June 2, 1915.) 
93668°— 17 33 



BULLETIN 32. 

Bulletin 1 WAE DEPARTMENT, 

No. 32. J Washington, September 10^ 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of August, 1915, and of certain decisions 
of the Comptroller of the Treasury, is published for the information 
of the service in general. 
[2255370 H— A. G. O.] 
By order of the Secretary of War : 

H. L. SCOTT, 
Major General^ Chief of Staff. 
Official*: 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

A COKRECTION. 

On page 5 of Bulletin No. 18, War Department, 1915, line 11, 
change " Manual for the Pay Department " to read "Army Regula- 
tions." 



COMIMAND: Detail of staff oflacer as oflacer of the day. 

The question was presented whether under existing regulations an 
officer serving a detail in the Quartermaster Corps may be required 
by his post commander to act as officer of the day. Paragraph 18, 
A. R., 1913, provides that a staff officer, " though eligible to command, 
according to his rank, shall not assume command of troops unless 
put on duty under orders which specially so direct, by authority of 
the President." 

Held., that service as officer of the day involves coimnand of troops, 
and that the detail by a post commander of an officer of the Quarter- 
master Corps for that duty would be in violation of existing regula- 
tions. 

(20-012.2, J. A. G., Aug. 16, 1915.) 



DETACHED SERVICE: Oflacers on duty in command of guard. 

Two officers with rank of first and second lieutenant, respectively, 
were ordered to duty from Fort Hamilton, N. Y., with a detachment 
composed of 51 enlisted men, 10 from each of their companies and 3 
other companies at Fort Hamilton and 1 from the Hospital Corps, 
and the question was presented whether the officers while on such 
duty should be regarded as on duty with their companies under the 
detached service law (37 Stat., 571). 
514 



DIGEST OP OPIN^IOISrS OF THE JUDGE ADVOCATE GENERAL. 515 

Held, that since the officers were not detailed for the performance 
of company duties or sent in command of detachments from their 
companies, but for general duty with the detachment as a whole or as 
a single detachment from Fort Hamilton, which duty was not inci- 
dent to nor flowed from their company relations, they could not 
properly be regarded as present for duty with their companies in 
the sense of the detached service law. 

(6-124.22, J. A. G., Aug. 26, 1915.) 



ENLISTMENT: Elig-ibility of applicant with record of coinmitinent for 
truancy. 

Paragraph 849, A. R., 1913, forbids the enlistment, among others, 
of persons " who have been imprisoned under sentence of a court 
in a reformatory, jail, or penitentiary." 

Held, that this provision does not apply to commitments for 
truancy, and that therefore an applicant who " was committed for 
422 days to the New York Parental School on account of truancy " 
was not ineligible for enlistment because of said commitment. 

(34-081, J. A. G., Aug. 6, 1915.) 



MAIL MATTER: As to registration and insurance. 

In view of the ruling (Bui. 18, W. D., 1915, page 4) that there was 
no authority for furnishing stamps for parcel post insurance, the 
question was presented whether the registration of mail matter should 
be regarded as insurance and the issuing of stamps therefor governed 
by the said ruling. 

Held, that the registration of mail matter is not for the purpose of 
providing ordinary indemnity insurance such as is contemplated in 
the case of insurance of parcel post packages, which are carried and 
treated as ordinary mail, but that the primary object of registration 
is to avail of the special or superior service designed to secure the safe 
delivery of the mail matter itself, the use of which service is well 
established in all branches of the Government, and that therefore 
postage might properly be furnished for the registration of mail 
matter when necessary in the Army service. 

(5-240, J. A. G., August 12, 1915.) 



OFFICERS: Examinations for promotion. 

A first lieutenant who failed in a mental examination for promo- 
tion to the grade of captain and was suspended from further exam- 
ination for a year, according to law, graduated from the Coast 
Artillery School during the said year of suspension, receiving cer- 
tificates of proficiency in all subjects. He desired to know whether he 
would be exempt from further examination in the subjects covered 
by such certificates, and also whether he would be required to take 
examination in the subjects in which he qualified on his previous 
examination. 

Section 3 of the act of October 1, 1890 (26 Stat., 562), provides, 
inter alia, that the President will prescribe a system of examination 
of all officers of the Army below the rank of major to determine their 



516 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

fitness lor promotioiij and that an officer failing on a mental exam- 
ination shall be suspended from promotion for one year and then 
be reexamined. The regulations applicable are contained in General 
Orders, No. 14, War Department, April 25, 1912, paragraph 28 of 
which exempts certain officers from examination " as to their profes- 
sional fitness for promotion to the next higher grade under the condi- 
tions and with the limitations hereinafter set forth." Among those 
listed are graduates of the Coast Artillery School who are exempt 
for four years from the date of graduation " in all subjects which 
they have pursued satisfactorily at that school." Paragraph 34 of 
the order directs that " the procedure prescribed in this order for the 
examination of officers for promotion will be followed in the reex- 
amination of officers suspended from promotion." 

Held^ that upon reexamination the officer would be exempt from 
examination in the subjects covered by his Coast Artillery School 
diploma, subject to the limitations set forth in paragraph 28, G. O. 
No. 14, W. D., 1912, although he may have failed on such subjects in 
his former examination, but that he would not be exempt from ex- 
amination on any subject by reason of having qualified therein on his 
previous examination. 

(64-221.4, J. A. G., Aug. 30, 1915.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in tlie oiBce of ttie Judge Advocate General.) 

CIVILIAN EMPLOYEES: Temporary promotions. 

The first deck officer of an Army transport was granted leave of 
absence without pay and it was proposed to fill the " vacancy " by 
temporary promotions from the lower grades. Section 12 of the 
Simdry Civil Appropriation Act of August 1, 1914, provides: 

" That it shall not be lawful hereafter to pay to any person, em- 
ployed in the service of the United States, under any general or lump 
sum appropriation, any sum additional to the regular compensation 
received for or attached to any employment held prior to an ap- 
pointment or designation as acting for or instead of an occupant of 
any other office or employment. This provision shall not be con- 
strued as prohibiting regular and permanent appointments by pro- 
motion from lower to higher grades of employments." 

Held, that the first officer while in the status of absence on leave 
without pay was still in the transport service and that so long as he 
remained in that status a " temporary promotion " of the second 
officer could not be a promotion to a vacancy, but in eflFect a designa- 
tion of the second officer as acting first officer, and that as the object 
sought was to give the lower officer the higher pay, the prohibition 
of the statute would apply. Held further, that temporary promo- 
tions are not prohibited by the statute where vacancies exist. 

(Comp. Geo. E. Downey, Aug. 12, 1915.) 



TRANSPORTATON : Discharge of enlisted man. 

A soldier who had enlisted at Fort I.ogan H. Roots, Ark., was dis- 
charged at Galveston, Tex. The official distance between the place 
of enlistment and the place of discharge, for purposes of transporta- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 517 

tion, was found to be 519 miles. The soldier requested transporta- 
tion to Mobile, Ala., or as far in that direction as his 519 miles enti- 
tled him to travel. The distance to Mobile, by the Ofiicial Table of 
Distances, was found to be 651 miles, or 32 miles farther than from 
Galveston to Fort Logan H. Roots. By a short-line, however, com- 
puted in part from the Railway Guide, the distance to Mobile was 
found to be 496 miles, and the soldier was furnished transportation 
over the shorter route to Mobile, at a cost of $15.45. The cost of 
transportation to Little Rock, Ark., the nearest station to the place 
of enlistment, would not have exceeded $10.43, and the auditor dis- 
allowed $5.02 in the settlement of accounts. 

Held., that the distance for which the transportation was furnished 
(496 miles) did not exceed the distance (519 miles) from the place 
of the soldier's discharge to the place of his enlistment (37 Stat., 
576), and that as transportation not exceeding such distance was re- 
quired to be furnished, without regard to the cost (Bui. 1, W. D., 
1913, page 33), the entire sum of $15.45 was properly disbursed there- 
for. 

(Comp. Geo. E. Downey, Aug. 20, 1915.) 



TRANSPORTATION: Immigrant rates on troop property and equipment. 

In the settlement of the accounts of a railway company for trans- 
portation of 15,121 pounds of equipage and troop property from Win- 
gate, N. Mex., to Albuquerque, N. Mex., and 114,789 pounds (4 cars) 
from Fort Bliss, Tex., to Wingate, N. Mex., the Auditor for the War 
Department applied the rate authorized for immigrant movables and 
household goods. The railroad company contended that the immi- 
grant rate was not applicable and that settlement should be made on 
the basis of the rates applicable for the specific items embraced in 
the shipment, for the reason, among others, that " the immigrant 
movables rate is applicable to shipment of persons moving into a 
new country for the purpose of settling and development, and the 
purpose of a movement of troop property and military stores can not 
be placed in the same class as that of an intended settler." 

Held^ that the shipment consisted of articles which, had they be- 
longed to private individuals, would have been entitled to the rate 
for immigrant movables and household goods; that because they be- 
longed to, or were in the custody of, the Government was no reason 
for any higher transportation charges thereon ; that it is established 
by rulings of the Interstate Commerce Commission, and of the 
courts, that the rate applicable for shipment is not dependent upon 
the owner of the goods or the purpose for which the articles are to be 
used, but of the class of articles embraced in the shipment. Action 
of the Auditor affirmed. 

(Comp. Geo. E. Downey, Aug. 11, 1915.) 



BULLETIN 36. 

BtjlletinI war department, 

No. 36. j Washington, Novemher 10^ 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army, for the months of September and October, 1915, and of 
certain decisions of the Comptroller of the Treasury and courts, to- 
gether with a collection of notes on military justice prepared under 
the direction of the Judge Advocate General of the Army, is pub- 
lished for the information of the service in general. 
[2255370, A. G. O.] 
By order or the Secretary of War : 

H. L. SCOTT, 
Majw General^ Chief of Staff. 
Official : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ATTORNEYS: Employment of. 

A certain military attache obtained the services of an attorney 
abroad in preparing a lease for an office room. 

Held^ that in view of section 189, Revised Statutes, which provides 
that "no head of a^ department shall employ attorneys or counsel at 
the expense of the United States; but when in need of counsel or 
advice, shall call upon the Department of Justice, the officers of 
which shall attend to the same," the War Department could not 
authorize the pa.yment of the attorney's fee. 

(5-212, J. A. G., Oct. 16, 1915.) 



COURTS-MARTIAL: Soldier sentenced to dishonorable discharge while 
serving a prior sentence; cumulative sentences. 

An enlisted man was convicted by special court-martial and sen- 
tenced to confinement at hard labor for six months and forfeiture of 
two-thirds of his pay for the same period. Shortly after the execu- 
tion of this sentence was begun, the soldier was convicted by general, 
court-martial and sentenced to dishonorable discharge and three 
days' confinement at hard labor. The question was submitted whether 
the execution of the general court-martial sentence should be deferred 
until the sentence of the special court-martial was fully executed so 
as to make the sentences cumulative, or whether it was required to 
be executed forthwith. Doubt arose because of the apparent con- 
flict between paragraph 973, A. R., 1913, and paragraph 10, page 73, 

518 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 519 

of the Manual for Courts-Martial, as well as because of uncertainty 
as to the requirements of paragraph 152, A. R. 

Paragraph 973, A. R., directs that when soldiers awaiting result 
of trial or undergoing sentence commit offenses for which they are 
tried, the second sentence will be executed upon the expiration of the 
first. Paragraph 10, page 73, Manual for Courts-Martial provides 
that where a soldier, while undergoing sentence of confinement im- 
posed without dishonorable discharge, is tried for a further offense 
and sentenced to dishonorable discharge and confinement, the period 
of confinement under his prior sentence will terminate upon the date 
of his dishonorable discharge, leaving to be executed only the con- 
finement imposed by the second sentence. 

Held^ that paragraph 973, A. R., and the provision of the Manual 
for Courts-Martial should be so construed as to give effect to both 
if possible and that this can be done only by giving literal effect to 
the provision of the Court-Martial Manual, which would result in 
negativing paragraph 973, A. R., in but one class of cases, namely, 
where the soldier is serving a sentence of confinement not involving 
dishonorable discharge as in the instant case, leaving the paragraph 
free to operate in all other cases coming within its terms. HeU fur- 
ther^ that under paragraph 152, A. R., a soldier is presumed to 
receive notice of discharge on the day or the arrival of the general 
court-martial order at his post. 

(28-420, J. A. G., Oct. 5, 1915.) 



DESERTION: When soldier is liable for the amount of reward. 

A deserter from the Army was apprehended and instead of being 
tried by court-martial was discharged " by reason of desertion and 
physical unfitness for service," under paragraph 126, A. R., as 
amended. Thereafter he applied for refundment to him of $50 
stopped against his final pay to cover the amount paid as a reward 
for his apprehension. 

Reld^ that the stoppage in question was unauthorized and should 
be refunded to the claimant, since stoppage against the pay of a 
soldier to cover the cost of his apprehension as a deserter and return 
to military control is authorized only {a) upon the actual conviction 
of the soldier of desertion by court-martial, or (&) upon his admis- 
sion of the crime of desertion preliminary to his restoration to duty 
without trial. (127 and 131, A. R.) 

(26-464, J. A. G., Oct. 16, 1915.) 



ENLISTED MEN: Travel without troops; Pullman car accommodations. 

On the question of what constitutes traveling without troops 
within the meaning of paragraph 1128, A. R., relating to the fur- 
nishing of Pullman car accommodations to enlisted men, 

Held^ that the term " troops " in said regulation contemplates an 
organization of some description under proper command; that usu- 
ally in the case of a detachment under the command of an officer 
the object of travel is the performance of some special duty, although 
it may be otherwise, as in the case of a recruiting party ; that, there- 



520 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

fore, when enlisted men perform travel not within an organization 
of some description under proper command, they are to be regarded 
as traveling without troops. 

(94-240, J. A. G., Sept. 18, 1915.) 



HEAT AND LIGHT: Enlisted man on temporary duty in the field. 

In an opinion published in Bulletin No. 5, page 5, War Depart- 
ment, 1915, the Judge Advocate General held that a noncommis- 
sioned officer on temporary duty in the field was not entitled to heat 
and light allowances for his family at his regular station. Subse- 
quently the Comptroller held that an enlisted man entitled to com- 
mutation of quarters at his regular station did not lose his right 
thereto while absent on furlough or temporarily absent on duty in the 
field, and that if his family continued to occupy his quarters during 
his absence he was entitled to commutation of heat and light also. 

A soldier who had paid for fuel and light under the Judge Advo- 
cate General's ruling applied for refundment of the amount so paid 
in view of the Comptroller's decision. 

Eeld^ that there is nothing in the statute on the subject to justify 
a difference in practice in providing heat and light allowances in 
kind from that pertaining to commutation of those allowances, and 
that the practice in regard to furnishing such allowances in kind 
should be changed to conform to the comptroller's ruling in respect 
of commutation thereof. 

(72-411, J. A. G., Sept. 30, 1915.) 

Note. — Under the changed construction it was held by the comp- 
troller in a decision of October 11, 1915, that the amount in question 
collected from the soldier for fuel and light furnished his family at 
his regular station during his temporary absence on duty in the field 
could properly be refunded to him from the appropriation to the 
credit of which it was deposited, as a refundment of money errone- 
ously collected. 

MEDICAL RESERVE OFFICERS: Computation of time for longevity in- 
crease. 

An officer of the Medical Reserve Corps was at the time of his ap- 
pointment thereto a contriict surgeon. He accepted his appointment 
March 6, 1915, and was not assigned to active duty thereunder until 
March 16, 1915. In the interim he continued to serve as contract 
surgeon. 

Held, that under the act of April 23, 1908 (35 Stat., 68), the pay 
status of an officer of the Medical Reserve Corps does not commence 
until he is called into active duty ; and that as the officer in the instant 
case was not assigned to active duty as an officer of the Medical 
Reserve Corps until March 17, 1915, his service for the purpose of 
longevity increase began on the later date. 

(6-227.4, J. A. G., Sept. 2, 1915.) 



NAVIGABLE WATERS: Right of United States to use of river bed. 

In connecetion with improvements along the Mississippi River in 
aid of navigation, the United States obtained sand and gravel from 
bars in the river for use in paving the river banks. The riparian 
owners demanded payment for the material. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 521 

Held^ that the United States has a paramount right under the com- 
merce clause of the Constitution to use the bed of navigable streams 
for any purpose designed to improve the navigation of the stream 
without compensation to the riparian owners, and that there was no 
obligation to make payment in this case. 

(62-120, J. A. G., Oct. 27, 1915.) 



TOURS OF DUTY LAW: Leaves of absence. 

In reference to the act of March 4, 1915, providing that no officer 
or enlisted man of the Army shall, except upon his own request, be 
required to serve in a single tour of duty for more than two years in 
the Philippine Islands. 

Ileld^ that leaves of absence spent in the Philippine Islands by an 
officer serving there should not be omitted in reckoning the length 
of his tour of duty, but that any time during which he is absent from 
the islands, from whatever cause, may properly be excluded. 

( 92-400, J. A. G., Oct. 4, 1915. ) 



TBANSPORTATION: Gasoline for officer's private automobile used in Gov- 
ernment service. 

A first lieutenant in the Engineer Corps who had charge of a field 
detachment operating in two parties about five miles apart used his 
private automobile in the performance of his official duties, instead 
of a team of mules which he returned to the Quartermaster Corps. 
He requested that he be furnished gasoline and lubricating oil for his 
automobile, pointing out in support of his request the advantages 
accruing from the use of his automobile. 

Held^ that there is no authority of law for furnishing gasoline and 
lubricating oil for use in a privately owned and operated automobile ; 
that Congress has provided the means of transportation for the 
Army which can not be varied; that the provision in the current 
Army appropriation act for the hire and operation of vehicles "re- 
quired for the transportation of troops and supplies and for official, 
military, and garrison purposes," evidently contemplates that ve- 
hicles used in the public service, at public expense for operation, must 
be operated under the jurisdiction of the Government either as 
owned or hired vehicles. Held further^ that the hire of the automo- 
bile from the officer in the instant case would be contrary to para- 
graph 521, A. R. 

(94-012, J. A. G., Sept. 10, 1915. ) 



TRANSPORTATION: Officer's baggage allowance on change of station. 

By an order of January 14, 1915, an officer with rank of captain 
was directed to change station from Washington Barracks, D. C., to 
St. Louis, Mo., effective March 1, 1915. On April 10, 1915, the officer 
was promoted to major with rank from February 28, 1915, or one day 
prior to his leaving for St. Louis under the orders mentioned. His 
household goods were not shipped until August 28, 1915, and the 



522 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

question was presented whether he was entitled to a captain's or a 
major's allowance in respect of such shipment. 

Held., that the shipment of an officer's baggage is an allowance in 
kind; that the officer's commission was retroactive for the purpose 
of pay and fixed allowances but not as to allowances in kind (19 
Comp. Dec, 414) ; and that as the officer was actually a captain at 
the time the travel was performed and would have been entitled only 
to a captain's allowance had the shipment been coincident with his 
change of station, which is the normal procedure, his rights in the 
matter were governed by the conditions actually existing at the time 
of the performance of the travel, which entitled him only to a cap- 
tain's allowance. 

(94-233, J. A. G., Sept. 13, 1915.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

APPROPRIATIONS: Transportation charges on condemned horses issued 
to Militia, 
By the act of March 4, 1915 (38 Stat., 1072), provision was made 
for the purchase of horses for the Organized Militia from funds 
appropriated by section 1661, Revised Statutes, and provision was 
further made for issuance to the militia, without cost to the State, 
of condemned Army horses which are no longer fit for service but 
jnay still be suitable for purposes of instruction. The current Army 
appropriation act under the heading " Transportation of the Army 
and its supplies " provides " for transportation * * * of sup- 
plies furnished to the militia for the permanent equipment there- 

Q-f * * * 55 

Held., that the latter provision did not embrace horses, but referred 
to the transportation of supplies authorized to be furnished to the 
militia under section IT of the act of January 21, 1903 (32 Stat., 
778) ; and that the cost of the transportation of condemned horses 
issued to the militia was properly payable from the militia funds 
provided bv section 1661, Revised Statutes. 

(Comp. W. W. Warwick, Sept. 30, 1915.) 



ARMY RESERVE: Transportation allowances of enlisted men when fur- 
loughed to the Reserve. 

The act creating the Army Reserve (37 Stat., 590) provides in 
part that — 

" Hereafter the Army Reserve shall consist of all enlisted men who 
after having served not less than 4 years with the organizations of 
which they form a part shall receive furloughs with pay or allow- 
ances until the expiration of their terms of enlistment, together with 
transportation in kind and subsistence as provided for by this act in 
the case of discharged soldiers, * * *." 

The provision referred to in the same act " in the case of dis- 
charged soldiers" authorizes the furnishing of transportation in kind 
and subsistence or., in lieu thereof, two cents a mile, exclusive of 
sea travel, to discharged enlisted men. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 523 

Held^ that the language "together with transportation in kind 
and subsistence as provided for by this act in the case of discharged 
soldiers " evidently was intended only to identify the general provi- 
sions of law applicable, and was not intended to limit the privileges 
and allowances of soldiers receiving furloughs to the Army Reserve 
to transportation in kind and subsistence, and that they are therefore 
entitled to receive two" cents a mile in lieu of transportation in kind 
and subsistence, in the same manner as is provided for in the case of 
enlisted men upon their discharge from the service. 

(Comp. W. W. Warwick, Oct. 16, 1915.) 



AVIATION SERVICE: Pay of officer while on. leave of absence. 

The act of July 19, 1914 (38 Stat., 514), creating the Aviation 
Section of the Signal Corps and providing for the detail of officers 
thereto, grants a " junior military aviator " an increase of 50 per 
centum in the pay of his grade and length of service under his line 
commission "while on duty requiring him to participate regularly 
and frequently in aerial flights." The increase is 75 per centum in 
the case of " military aviators." 

Held., that the right to the increased pay of 50 per centmn, or 75 
per centum, is dependent upon duty rather than upon detail alone, 
and that therefore an officer is not entitled to the increase for time 
during which he is on leave of absence. 

(Comp. W. W. Warwick, Sept. 21, 1915.) 



CHECKS: Issuance of second original, as distinguished from duplicate, when 
original is lost. 

The question was submitted by the Secretary of the Treasury 
whether it is proper to permit a disbursing officer to issue a second 
original check when the original check is lost, stolen, or destroyed. 

Section 3646, Revised Statutes, as amended (35 Stat., 643), pro- 
vides in substance, inter alia., that whenever any original check issued 
by a disbursing officer has been lost, stolen, or destroyed, the Secre- 
tary of the Treasury may authorize the disbursing officer, after the 
expiration of six months and within three years from the date of 
the lost check, to issue a duplicate upon the execution of a pre- 
scribed indemnity bond ; provided, that if the original check was not 
for more than $50 a duplicate may be authorized after 30 days and 
within three years. 

Held., that while disbursing officers are not prohibited by statute 
from assuming the responsibility resulting from the issuance of a 
second original check, the propriety of so doing is under the control 
of the accounting officers and not within the discretion of a dis- 
bursing officer, nor for the regulation of the department for which 
he is acting. Held further., that the procedure prescribed by the 
statute should be followed, and no second original check should be 
issued even though the lost check be one which the disbursing officer 
has drawn in his own favor. 

(Acting Comp. Treas., Oct. 29, 1915.) 



524 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

COURTS-MAIITIAL: Effect of sentence as to forfeiture of pay. 

The following question was submitted for the Comptroller's de- 
cision : When an enlisted man of the Army is sentenced under the 
provisions of G. O. 70, War Department, September 23, 1914, to for- 
feit, say, one-half or two-thirds of his pay per month, or pay for 15 
days, should the following items of pay be considered in computing 
the amount of such forfeiture? 

(1) Additional pay as expert rifleman, sharpshooter, and marks- 
man. 

(2) Additional pay as first-class and second-class gunner. 

(3) Additional pay as casemate electrician, observer, first class, 
plotter, chief planter, chief loader, observer, second class, gun com- 
mander, gun pointer. 

(4) Additional pay as mess sergeant. 

(5) Fifty per cent, increase aviation service, act of July 18, 1914, 
including increase provided for " aviation mechanician." 

(6) Twenty per cent, increase of pay for foreign service under 
the act of Jime 30, 1902 (32 Stat., 312), as modified by the act of 
August 24, 1912 (37 Stat., 576). 

(7) Pay for certificate of merit. 

Held^ that each of the various items mentioned constitutes a part 
of the soldier's " pay " as that term is generally understood, and that 
in the absence of an express stipulation to the contrary a court- 
martial sentence forfeiting all or a fractional part of a soldier's pay 
for a specified period must be held to include all such items. 

(Comp. W. W. Warwick, Oct. 22, 1915.) 

Note. — The above decision is distinguished from the Comptroller's 
decision of May 19, 1915 (published in Bulletin 21, page 11, War 
Department, 1915), to the effect that the term '•^ pay proper'''' as used 
in the foreign service pay act of June 30, 1902, does not include 
extra pay allowed for special assignments. It does not follow 
that because such extra pay is not " pay proper " within the meaning 
of the act of 1902, it can not be regarded as pay within the meaning 
of a sentence forfeiting a soldier's pay or a part thereof for a speci- 
fied period. It will be noted also that the present decision is in har- 
mony with the practice of the service. (See Par. 958, Manual for the 
Pay Department, 1910.) 



TRANSPOBTATION: Basis of freight charges when weight of shipment 
shrinks en route from natural causes. 

A shipment of hemp by the Navy Department from Manila, P. I., 
to Boston, Mass., by commercial liner was found upon receipt at des- 
tination to have shrunk in weight en route, and the question was pre- 
sented whether the freight charges should be reckoned upon the 
weight of the hemp at Manila or upon its weight at its destination. 
The amount of shrinkage was 2,369 pounds on an initial shipment 
of 223,424 pounds, and it was evident that the shrinkage was due 
to natural causes and not to actual shortage or to improper service 
on the part of the transpoi-tation company. 

Tleld^ that the company having transported imder the usual con- 
ditions affecting marine shipments the amount of hemp which it 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 525 

undertook to carr}'^, and there being no question of negligence nor 
as to accuracy of the weight, the discrepancy in weight being en- 
tirely due to shrinkage from natural causes, the freight charges, 
should be reckoned upon the initial weight at the point of shipment. 
There was nothing to the contrary in the contract of shipment. 
rComp. W. W. Warwick, Oct. 11, 1915.) 



TRANSPORTATION: Excess baggage on change of station. 

An officer on change of station had 13,915 pounds of household 
goods, professional books, and a surrey, loaded in one car and paid 
for on a carload basis at the rate of 56 cents per cwt. In addition he 
had an automobile weighing 1,600 pounds shipped in another car at 
$2.52 per cwt. The officer's regulation allowance, including the pro- 
fessional books, was 7,690 pounds. It was contended that the proper 
method of determining the excess charges was to treat the shipment 
as an entirety and to proportion the aggi-egate expense on the basis 
of weight for which the Government and the officer each was re- 
sponsible. 

Held, that the officer's regulation allowance being less than a car- 
load the cost required to be paid by the Government was the pro- 
portion of the car load shipment of which it formed a part, and 
that the excess consisted of 6,225 pounds loaded in the same car with 
the regulation allowance and the automobile loaded in another car. 

(Comp. W. W. Warwick, Oct. 22, 1915.) 



COURT DECISION. 

(Digest prepared in the office of the Judge Advocate General.) 

MARINE CORPS: Jurisdiction of naval court-martial to try marine for an 
act committed while he was detached for service with the Army. 

A private of the Marine Corps, while his brigade was detached 
for service with the Army, committed an act made an offense both 
by the rules and Articles of War and by the laws and regulations for 
the government of the Navy. The next day his brigade was with- 
drawn from detached service with the Army and he was brought 
before a naval court-martial for trial, was tried, convicted, and sen- 
tenced for the offense as a violation of the laws and regulations of 
the Navy. At the trial he objected to the jurisdiction of the court 
upon the ground that at the time the offense was charged to have 
been committed he, as a private in a brigade of the Marine Corps, 
was serving with the Army, and that under section 1621, Kevised 
Statutes, he was not subject to the laws and regulations of the Navy, 
which objection was overruled. He sued out a writ of habeas corpus. 

Held, that the accused was not subject to the rules and regulations 
of the Navy when he committed the offense charged, and that a 
naval court-martial was without authority of law to impose or en- 
force the sentence pronounced. 

{United States ex rel. Davis v. Waller, 225 Fed., 673.) 



526 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL 

NOTES ON ADMINISTRATION OF MILITARY JUSTICE. 

(Prepared under the direction of tlie Judge Advocate General of the Army 
upon the review of records of general courts-martial trials.) 

The admonition to the service respecting' the administration of military 
justice, contained in Army Begulations of 1835, is deemed by the 
Department to be of special relevancy to existing conditions and is here 
published for the information and guidance of all concerned. 

" The discipline and reputation of the Army are deeply involved 
in the manner in which military courts are conducted and justice ad- 
ministered. The duties, therefore, that devolve on officers appointed 
to sit as members of courts-martial, are of the most grave and im- 
portant character — that these duties may be discharged with justice 
and propriety, it is incumbent on all officers to apply themselves dili- 
gently to the acquirement of a competent knowledge of military law ; 
to make themselves perfectly acquainted with all orders and regula- 
tions, and with the practice of military courts." — Par. i, Art. 3S, 
A. R., 1835. 



CHARGES: As to certainty in alleging place of crime. 

In a case recently tried in the Philippine Department the specifi- 
cation of which the accused was convicted alleged that the crime was 
committed " on board the U. S. A. T. Thomas.'''' An allegation such 
as this, which does not specify whether the vessel was in a port or at 
sea, might in a case where there is a question as to whether or not the 
offense of which the accused is convicted is punishable under the 
local law by confinement in a penitentiary, be an embarrassment in 
determining upon the proper disposition of the prisoner, and, in any 
case, is unsatisfactory. 



DESEHTION: No defense that soldier intended to go and did go to another 
post. 

In a case tried in the 2d Division the accused, who was tried for 
desertion, was found guilty of absence without leave only, although 
the evidence was clear that he left his place of duty with intent not 
to return and surrendered at another post. The reviewing authority 
in returning the record for revision of findings and sentence prop- 
erly remarked that the fact that the accused may have intended to 
go and did go to another post did not change the character of his act. 



FINDINGS, IMPROPER: Evidence of lack of care on the part of members 
of the court. 

In a case recently tried in the Southern Department the record was 
returned by the reviewing authority for revision of the findings and 
sentence, the former for irregularity, and the latter because such 
sentence would have retained in the service a man convicted of a 
crime involving moral turpitude. 

The accused in this case was tried, inter alia, for desertion, and the 
findings under that charge were as follows: 



DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 527 

" Of the specification 1st charge ' not guilty, but guilty of absence 
without leave.' Of the 1st charge ' not guilty, but guilty of the 32d 
Article of War.' " 

These findings were made by a court, the majority of whose mem- 
bers were officers of long experience, and are explainable only on the 
supposition that no member was sufficiently interested in the prepa- 
ration of the record to see that it was free at least from such palpable 
errors as here noted. 



FINDINGS, IMPROPER: Resulting in unnecessary delays. 

In a case recently tried in the Philippine Department the court 
found the accused guilty of a properly drawn specification under the 
21st Article of War and then proceeded to find not guilty of the 
charge but guilty of conduct prejudicial to good order and military 
discipline. Upon return of the record by the reviewing authority 
for correction the court instead of revoking its former finding of the 
specification and proceeding to a new finding thereof merely excepted 
the word " wilfully " in the finding under the specification. Because 
of the latter meaningless finding it was necessary to return the record 
a second time for correction. The court was composed of officers of 
considerable length of service. The case is an example of the unnec- 
essary delay caused by want of care on the part of the court. 



FINDINGS, IMPROPER: Trials for desertion, absence without leave. 

In a case recently tried in the 2d Division the evidence showed 
that the accused, who was tried upon a charge of desertion and found 
"not guilty," was in fact absent without leave. The record was re- 
turned by the reviewing authority for revision in this regard which 
was accomplished. Except in rare cases the evidence in a trial for 
desertion shows that the accused is guilty of the included offense of 
absence without leave at least, and that he merits proper punishment 
for such absence. The occasional failure of courts in such cases to 
find and sentence accordingly is one of the causes of the protracted 
average periods between arrest upon charges and entering upon the 
execution of sentence noted in annual reports of Judge Advocate 
General for 1913, 1914. and the current year. 



INSANITY: As an issue should be determined when raised in a trial. 

In a case recently tried in the Eastern Department the evidence 
of record was such as to raise a doubt as to the full mental respon- 
sibility of the accused, who was convicted of disrespect to a medical 
officer and of disobedience of the officer's orders. The officer himself 
testified that he did not see how the accused could talk the way he did 
and be otherwise than insane, and the accused testified that he had 
been an inmate of the Government Hospital for the Insane. It was 
the duty of the court to instruct the judge advocate to submit such 
evidence as was available as to the mental responsibility of the ac- 
cused, and if, upon the whole evidence, the court had reasonable 
doubt as to his mental responsibility, he should have been acquitted. 
The trial proceeded, however, to conviction and sentence, in which 



528 DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the court exhibited its own doubt as to the full mental responsibility 
of the accused by awarding him a punishment wholly inadequate for 
the serious offenses of which it convicted him. The unexecuted por- 
tion of the sentence in this case was remitted by the Secretary of 
War. 

JUDGE ADVOCATE: Failure in his duties, resulting in miscarriage of 
justice. 

In his action upon the record of a general court-martial a reviewing 
authority recently disapproved the findings of guilty upon two speci- 
fications, in which forgery of the payees' names as indorsements on 
two Government checks was alleged, because of a lack of evidence to 
sustain the findings; and he remarked that a miscarriage of justice 
had resulted in that case because of failure of the trial judge advocate 
to try the case properly. 

While the record does not disclose what additional material evi- 
dence could have been secured, it is believed from the record that 
such evidence was available; it does appear, however, that the 
presentation of the case by the judge advocate was most unskillful 
and not in accordance with the approved practice. He introduced 
and examined witnesses, whose attendance was evidently procured at 
great expense to the Government, and it is apparent that he failed 
to elicit from them all pertinent evidence within their knowledge. 
It is also seen that this case was regarded as of such importance as to 
render necessary the attendance of a witness from the office of the 
Auditor for the War Department, who traveled several hundred 
miles, in order to have before the court the original checks in ques- 
tion, yet the judge advocate neither read the checks as evidence be- 
fore the court nor did he append copies thereof to the record. The 
original checks should have been submitted with evidence as to the 
signatures, and copies thereof, preferably photographic copies, should 
have been made and appended to the record. 

The record states : " The judge advocate then exhibited to the court, 
as evidence for the prosecution, two signatures of the accused, which 
were admitted by him to be signatures in his own handwriting." No 
other evidence of such admission by the accused is shown. Neither 
the signatures nor copies thereof were appended to the record. 

The record exhibits such an inadequate performance of duty on the 
part of the judge advocate as is inexcusable in any officer of the 
Army. 

JUDGE ADVOCATE: Failure in his duty, record encumbered by irrele- 
vant testimony. 

In a case" recently tried at Fort Mills, Corregidor, P. I., the review- 
ing authority remarked in its action that " It is evident that the judge 
advocate did not properly prepare his case and present it to the court 
in an orderly and logical manner." The occasion for this remark is 
one not infrequently observed in records, and arises from the fact 
that the trial judge advocate fails to interview his witnesses before 
putting them on the stand, and thereby inform himself as to their 
exact knowledge of the facts in the case, with the result that much 
irrelevant testimony is introduced which serves only to encumber the 
record and confuse the issues of fact to be tried. 



DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 529 

JUDGE ADVOCATE : Failure in his duty to produce evidence. 

In a case recently tried at Camp Stotsenburg, P. I., the accused 
tvas charged with desertion and remaining absent in desertion until 
apprehended by the Philippine Constabulary. He pleaded not guilty, 
M'hich cast the burden of proof of every allegation of the specifica- 
tion upon the prosecution. He was found guilty of absence without 
leave only and retained in the service. The trial judge advocate failed 
to secure the attendance of the constabulary officer or soldier con- 
nected with the apprehension or surrender of the accused, or his 
deposition, but instead, stated to the court that upon investigation 
he was satisfied that instead of being apprehended, as stated in a 
letter from the senior inspector of constabulary, the accused deliv- 
ered himself up for transportation to a post, and that- a deposition 
from the inspector was not considered necessary. The court ac- 
cepted this statement and permitted the trial to proceed without the 
testimony of the constabulary officer. The evidence in this case 
tended so strongly to prove that the accused intended to desert that 
the circumstances concerning his return to military control were 
material and important matters which should have been laid before 
the court, and the reviewing authority in returning the record for 
revision properly characterizes the action of the court and trial judge 
advocate as error. 



PLEA OF GUILTY: Accused given erroneous information by court re- 
specting punishment. 

It is observed in a recent case that a reviewing authority com- 
mented upon the error of the president of a general court-martial, 
who, upon a. plea of " guilty " having been entered by an accused, 
made an erroneous statement to the latter as to the limit of punish- 
ment possible for the offense of which he had pleaded guilty. The 
president informed the accused that such limit was " confinement 
at hard labor for three months and forfeiture of pay for two-thirds 
of that period;" whereas, the maximum limit was dishonorable dis- 
charge, forfeiture of all pay and allowances, and confinement at hard 
labor for one year. 

Proper regard for the rights of the accused, though he be assisted 
by counsel, demands the exercise of more care than was here dis- 
played by the president of the court. 

In two cases recently tried in the Eastern Department, the accused, 
under a charge of desertion, pleaded not guilty of desertion but 
guilty of absence without leave. The president of the court informed 
the accused in a general way, but without reference to the case in 
hand, that a plea of guilty to any offense was an admission of guilt 
and that in so pleading he subjected himself to such punishment as 
might be deemed adequate by the court. The meaning of the plea 
of the accused and the extent of punishment to which it might 
subject him were, therefore, not adequately explained, and the re- 
viewing authority properly remarked in orders upon the failure to 
comply with the requirements of section 8, Paragraph II, of G. O. 
70, W. D., 1914, that: 

" In each case tried by a general court-martial in which the accused 
enters a plea of guilty it shall appear of record that the meaning 

93668°— 17 34 



530 DIGEST OF OPINION'S OF THE JUDGE ADVOCATE GENERAL. 

of his plea and the extent of the punishment to which it may subject 
him was adequately explained to the accused by the president of the 
court, and that the accused was, after such explanation, asked if he 
desires to have the plea of guilty stand. If he replies in the affirma- 
tive, the plea of guilty will stand; otherwise, a plea of not guilty 
will be entered. The explanation of the president and the reply of 
the accused thereto shall appear upon the record of trial. The same 
rule will apply in cases tried by special court-martial when the evi- 
dence heard is made of record." 

In a case recently tried in the 2d Division the accused pleaded 
guilty to absence without leave for three days, the maximum punish- 
ment for which is confinement at hard labor for nine days and for- 
feiture of six days' pay. The president of the court in explaining 
to the accused that upon proof of five or more previous convictions, 
dishonorable discharge with forfeiture of all pay and allowances 
was authorized in this case, added : 

" The court may also, by custom of the service, properly adjudge 
in addition, confinement at hard labor for three months." 

These added remarks were erroneous in two particulars, viz, -as 
to the period of confinement authorized in the particular case, and in 
stating that the authority therefor was " custom of the service." 

The error of the president was remarked upon by the reviewing 
authority in his action on the case, and was one which could have 
been avoided had the president of the court consulted the provisions 
of G. O. 70, W. D., 1914. 

PLEA OF GUILTY: Does not preclude taking of evidence to determine 
degree of punishment. 

An officer was convicted, in accordance with his plea, of having 
unfitted himself, by the use of intoxicating liquors, for an important 
duty, for which he had been detailed under orders of the War De- 
partment, necessitating his admission to a post hospital. He was 
sentenced to be reprimanded. According to the testimony of the 
accused he drank intoxicating liquor for several days on account of a 
cold and slight cough ; he did not insist that this was upon the ad- 
vice of a physician ; nor does it appear that he even sought the ad- 
vice or services of a physician during this time, though three medical 
officers of the Army were available and the accused was living in the 
same building with one of them. These medical officers attended the 
accused after his admission to the hospital. 

The accused was the only witness heard upon the trial. No reason 
appears of record as to why the evidence of these medical officers was 
not had before the court ; 'for a full understanding of the case their 
evidence was necessary; and the judge advocate and the court failed 
to do their full duty in trying the case upon the admissions and testi- 
monv of the accused alone. 

Even upon the showing made by the accused, punishment much 
more severe than reprimand should have been imposed. 



RECORD: Needless errors in, evidencing lack of care. 

In a case recently tried in the Central Department, the court found 
accused guilty of absence without leave, under a charge of desertion, 
and then imposed a sentence involving a period of confinement twice 



DIGEST OF OPINTOlSrS OF THE JUDGE ADVOCATE GENEKAL. 531 

as long as that authorized for the absence without leave, and more 
appropriate for desertion. On return of the record for revision, the 
finding was properly corrected to one of guilt^y of desertion. This 
case is one of a considerable number, revealed by examination of 
records in this office during the past month, in which delay of dis- 
position of cases has occurred because of irregularities which re- 
quired the return of records for revision. In practically every case 
the irregularities and consequent delay could have been avoided by 
the exercise of reasonable care on the part of members of the court, 
or the judge advocate, in applying the plain provisions of the 
Manual for Courts-Martial during the proceedings, or by carefully 
scrutinizing the record before forwarding it to the reviewing au- 
thority. 

RECORD : Needless errors in, necessitating reconvening court. 

In a case recently tried in the Philippine Department the accused 
under a charge of desertion made the usual and prescribed exceptions 
and substitutions in the specification so that it would allege absence 
without leave only and pleaded under the charge not guilty of deser- 
tion but guilty of absence without leave, in violation of the 32d 
Article of War. The court, which was composed of officers of ex- 
perience, in supporting the plea of the accused, instead of following 
the form prescribed, found him of specification and charge " guilty 
as plead." In preparing its record the court recorded as present 
at assembling for trial the name of an officer who had been detailed 
as judge advocate but relieved prior to the meeting of the court, in- 
serted a mimeograph copy of the orders convening the court and 
modifying the detail, instead of copying them, and omitted the com- 
pany and regiment of the accused from the sentence, all of which 
caused unnecessary delay and made it necessary for the convening 
authority to order the court to be reconvened for correction of its 
record. 



RECORD OF TRIAL: Incomplete, should be returned by reviewing 
authority for correction. 

In a case recently tried in the Southern Department, the review- 
ing authority remarked that a plea to one of the specifications was 
omitted from the record but that from evidence in the case it might 
properly be assumed that a plea of not guilty was entered. The 
court which tried the case could have been reconvened to make its 
record show whether or not there was in fact a plea entered to the 
specification in question. It happens that the punishment in this 
case was a light one for any one of the three specifications of which 
the accused was convicted, but it is obvious that embarrassment in 
the administration of military justice might arise from failure to 
make a record conform to the facts in a trial. 



SENTENCE, INADEQUATE: Officer convicted of mistreatment of en- 
listed men. 

An organization commander was recently convicted by general 
court-martial of mistreatment of enlisted men of his command, the 
mistreatment including (1) the use of pi'ofane language toward cer- 



532 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

tain of them, and (2) the inflicting of humiliating correction upon 
one of them by causing his mouth to be washed with soap and water, 
facing him toward a wall and requiring him to assume certain con- 
strained positions. 

These punishments transcend any disciplinary authority vested in 
organization commanders recognized by paragraph 953, A. E. They 
have not that element of excuse which would be present if the or- 
ganization commander had been dealing with mutiny or mutinous 
conduct which is not suggested by the record. They exhibit the 
organization commander as himself lacking that self control without 
which capacity to control others may not be expected. The case 
was one calling for much severer punishment than the reprimand 
imposed. The reviewing authority's action in carrying out the repri- 
mand was limited in substance to an expression of the belief that 
the anxiety caused the organization commander by the investigation 
and trial, together with the admonition conveyed by the issuance 
of the order, constituted a sufficient reprimand, and shows failure on 
his part to appreciate the gravity of the offense. The terms in which 
the reprimand was administered are in effect an excuse for not carry- 
ing out the sentence imposed. 



SENTENCE OF DISHONORABLE DISCHARGE: Suspension of, when 
proper. 

The annual reports of the judge advocate of departments and other 
commands having general court-martial jurisdiction for the fiscal 
year 1915 reveal that in the whole Army there were 410 cases, in 
which sentence of dishonorable discharge was suspended by the re- 
viewing authority, and that 280 of these cases were so acted upon 
by the commander of one department. This number is 39.77 per cent 
of all the sentences of dishonorable discharge imposed by courts of 
that command during the year. It is believed that a careful con- 
sideration of the records of trial will not justify supsension of sen-, 
tence in so high a percentage of cases. 

Paragraph 7, G. O. No. 70, W. D., 1914, provides that a sentence 
of dishonorable discharge will be suspended only " whenever the 
character of the offense for which the sentence is imposed and the 
facts developed by the evidence indicate that there is a probability 
of reclaiming the soldier to honorable service." On the other hand, 
while the particular department commander probably used the power 
of suspension too freely, the fact that the suspensions in this depart- 
ment were 68.3 per cent of the whole number of suspensions would 
seem to indicate that other department commanders have not availed 
themselves of the authority in proper cases. 



BULLETIN 39. 

Bulletin 1 WAR DEPARTMENT, 

No. 39. J Washington, December' 7, 1915. 

The following digest of opinions of the Judge Advocate General 
of the Army, for the month of November, 1915, together with a col- 
lection of not€S on military justice prepared under the direction of 
the Judge Advocate General of the Army, is published for the 
information of the service in general. 
[2255370 J— A. G. O.] 

By order of the Secretary of War : 

H. L. SCOTT, 
Major General.) Chief of Staff. 
Official : 
H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CIVILIAN EMPLOYEES: Leaves of absence to attend military camps of 
instruction. 

The question was presented whether Government employees desir- 
ing to attend business men's camps of military instruction might be 
permitted to do so on a pay status without having the time so spent 
charged against their regular annual leaves. It was pointed out that 
Government employees belonging to the Organized Militia of the 
District of Columbia enjoy such a privilege while on duty with the 
Militia. By section 49 of the District of Columbia militia act of 
1889 (25 Stat., 779), it was provided that officers and employees of 
the United States and of the District of Columbia who are members 
of the National Guard shall be entitled to leave of absence from 
their respective duties, without loss of pay or time, " on all days of 
any parade or encampment ordered or authorized under the pro- 
visions of this act." 

Held., that the provisions of the act of 1889 referred to apply only 
to Government employees belonging to the National Guard of the 
District of Columbia, and that, there being no similar statutory pro- 
vision in respect to other employees, any absence from duty for the 
purpose referred to would have to be charged against their annual 
leave or without pay if the annual leave be exhausted. 

(58-400, J. A. G., Nov. 20, 1915.) 



DESERTERS: Restoration to duty as affecting forfeiture of deposits. 

In the case of a deserter sentenced to dishonorable discharge and 
to a term of imprisonment and who received an honorable restora- 
tion to duty under section 1352, Revised Statutes, the question was 

533 



534 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

presented whether deposits which he had made with a quartermaster 
prior to his desertion were restored to him. (See Bui. No. 8, W. D., 
1914, page 10.) By the act of June 12, 1906 (34 Stat., 246), it was 
provided that soldiers' deposits " shall be forfeited for desertion." 

Held^ that a restoration to duty in such cases does not affect the 
forfeitures. 

(80-462, J. A. G., Nov. 2, 1915.) 



DETACHED SERVICE LAW: As to credit for service with machine-gun 
troop of Cavalry. 

A second lieutenant who had performed duty with a machine- 
gun troop of Cavalry applied to have such service credited as service 
with troops within the meaning of the detached-service law. It was 
pointed out that the old machine-gun platoon of a regiment of 
cavalry has been superseded by a machine-gun troop, so that the lan- 
guage "^of the general law (act of August 24, 1912, 37 Stat., 645) — 
" duty * * * with a troop, battery, or company " — would appear 
to be applicable. 

Eeld^ that the expression " troop, battery, or company " was in- 
tended to apply only to organizations so designated by statute, and 
not to any group which might from time to time be termed a troop 
or company by the War Department; that the regimental machine- 
gun troop or company is an organization unknown to the law and 
therefore not included in the class defined by Congress when the 
original detached-service law was enacted. 

(6-124.5, J. A. G., Nov. 10, 1915.) 



ENLISTED MEN: Purchase of discharge. 

Discharge by purchase was authorized by the Act of June 16, 1890 
(26 Stat., 158), which provides that — 

" In time of peace the President may, in his discretion and under 
such rules and upon such conditions as he shall prescribe, permit 
any enlisted man to purchase his discharge from the Army." 

The rules prescribed are contained in General Orders No. 31, War 
Department, 1914, and extend the privilege of purchase to "any 
enlisted man who has completed one year's service as such," with 
the restriction that " credit will not be given * * * for any 
period of time during which a soldier has been in desertion or absent 
without leave." 

Held, that the term " one year's service " as used in the above men- 
tioned Order No. 31 is to be construed as including all time not 
excluded by the restriction that "credit will not be given * * * 
for any period of time during which a soldier has been in desertion 
or absent without leave." 

(34-052, J. A. G., Nov. 17, 1915.) 



PRIVATE MOUNTS: Shipment of, at public expense. 

An officer who had resigned from the Army requested the shipment 
of his private mount at public expense as an incident to his change of 
station made before his resignation. The shipment of private mounts 



DIGEST OF OPINION'S OF THE JUDGE ADVOCATE GENERAL. 535 

is governed by paragraph 1098, Army Regulations, and among the 
conditions is the restriction that the horses must be owned by the 
officer and " are intended to be used by him at his new station in the 
public service." 

Eeld^ that the effect of the regulation is that the right of shipment 
of private mounts at public expense is not a personal one which be- 
comes vested in the officer as a necessary incident of a change of 
station, but on the contrary is conditioned upon the officer's intended 
use of the horses in the public service, and this intention must exist 
when the shipment is made. 

(64-330, J. A. G., Nov. 9, 1915.) 



NOTES ON ADMINISTRATION OF MILITARY JUSTICE. 

(Prepared under the direction of tlie Judge Advocate General of the Army 
upon the review of records of general courts-martial trials.) 

DELAY: Due to carelessness of court or of judge advocate. 

Delays in final action by the reviewing authority because of care- 
lessness on the part of the court or of the judge advocate are fre- 
quently found. In one recent case the record failed to account for 
one member of the court, while another was reported as both present 
and absent ; thirteen days were lost through the necessity of returning 
the record for correction. In a sentence which was intended to 
impose dishonorable discharge, forfeiture, and confinement, the court 
omitted the words " discharged " and " pay and." Before the record 
was received back for correction, changes of station had reduced the 
court below the number required by law, and it was necessary to 
order one of the members back from a distant station to make up the 
required number. The time thus lost was one month and twenty- 
five days. In one case the court omitted to record a finding under 
one of the specifications, and final action was thereby delayed thirty 
days. Failure to follow the prescribed form for sentences caused 
delays of seven days in each of two recent cases, and of six days in 
another. 



DEPOSITIONS: Necessity of covering all essential facts by interroga- 
tories. 

In a case of desertion recently tried, it was charged that the accused 
was apprehended at a certain place on a certain date, but the judge 
advocate, in preparing interrogatories for depositions, failed to in- 
clude any questions concerning these allegations. The accused 
pleaded not guilty, thus casting the burden of proof of every allega- 
tion of the specification upon the prosecution. The court found the 
accused guilty as charged. On return of the record by the reviewing 
authority calling attention to the lack of evidence as to the facts in 
question, the court made amendments resulting in a finding that the 
accused remained absent in desertion " until some date after August 
1, 1914." The reviewing authority accepted this unusual finding for 
the purpose of the sentence, assumed, as being most favorable to the 
accused, that he surrendered, approved the sentence and reduced the 



536 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

period of confinement imposed. This delay thus caused in final 
action on the case was sixteen days. 

In two cases of desertion, where the evidence as to the absence was 
obtainable only by deposition, the judge advocate asked the question 
whether the accused absented himself on such a day, but made no 
inquiry as to whether the absence was without leave. It so hap- 
pened that the accused in each of these cases pleaded guilty to the 
unauthorized absence; otherwise, serious delay, and possibly a mis- 
carriage of justice, would have resulted. 



FINDINGS: Making such amendments that specification fails to state an 
offense. 

In a case recently tried in the Southern Department, the record 
was returned by the reviewing authority because under a specifica- 
tion alleging theft the court found the accused not guilty of the theft 
but guilty of having " guilty knowledge " of the same. The review- 
ing authority expressed the view that under the finding of the court 
the specification did not state a military offense. The court then 
amended its finding to show that the accused having knowledge of 
the theft failed to make a report thereof. The delay in the final dis- 
position of the case on account of the erroneous finding of the court 
was about twelve days. 

Under a specification that the accused did feloniously take, steal, 
and carry away a certain article, the court found the accused guilty 
except of the words " feloniously " and " steal," and of the excepted 
words not guilty. The specification as amended does not state an 
offense. It was therefore necessary for the reviewing authority to 
return the record for revision, and the court then properly substi- 
tuted the word " unlawfully " for " feloniously." 



RECORD: Unnecessary return of. 

In a case recently examined, the record shows that the reviewing 
authority returned it for the reason that when the accused changed 
his plea to a specification from not guilty to guilty the court allowed 
the plea of not guilty to the charge to remain of record. The time 
lost before final action of the reviewing authority was about seven 
days. While there is no disposition to criticise in matters within the 
discretion of reviewing authorities, it is suggested that where a defect 
in pleading is cured by the finding, as it was in this case, the return 
of the record is unnecessary and serves only to prolong the period 
between the arrest of the accused upon charges and his entering upon 
the execution of his sentence. 



SPECIFICATIONS: Necessity for precision in drawing of. 

In a case recently tried in the Central Department, the accused 
pleaded guilty to two specifications, each alleging that he committed 
" an act of sexual perversion " without any words descriptive of the 
act. There was no evidence taken in the trial. The court imposed a 
sentence of dishonorable discharge, total forfeiture, and confinement 
at hard labor for two years. The reviewing authority designated a 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 537 

penitentiary as the place of confinement, but as there was nothing 
in the record of trial to indicate that the accused had committed an 
offense punishable by penitentiary confinement under the law of the 
State or of the United States, it became necessary to change the 
designation to the United States Disciplinary Barracks, Fort Leaven- 
worth, Kans. This case is noted as showing that in ail cases of sexual 
perversion the precise acts constituting the offense should, if possible, 
be ascertained and set forth in the specifications in order that it may 
be definitely ascertained if the offense be one punishable by confine- 
ment in a penitentiary. 

SENTENCE: Failure to follow forms prescribed in G. 0. 70, W. D., 1914. 

In a case recently tried in the Philippine Department, the record 
was returned by the reviewing authority because the court in award- 
ing a sentence, involving confinement at hard labor and forfeiture, 
instead of following the form prescribed for such sentence in G. O. 
No. 70, W. D., 1914, sentenced the accused " to be confined at hard 
labor at such place as the reviewing authority may direct for forty- 
eight days and to forfeit thirty-two days of his pay." There seems 
to be no reasonable excuse for the failure of a court composed of ex- 
perienced officers, as this one was, to comply with the plain provisions 
of the order in question. 

SENTENCE : Failure to include hard labor in connection with, extended 
periods of confinement. 

In three cases recently examined in this office, the sentences, which 
involved long periods of confinement, did not include hard labor. 
Because of these defective sentences, it was necessary for the review- 
ing authority to return the record for revision, resulting in delays of 
five, seven, and eight days, respectively, in the final disposition of 
these cases. 



SENTENCE: Relation to finding and evidence. 

In a case tried in the Eastern Department, the accused, a retired 
soldier, pleaded guilty to a minor offense, which, as explained to him 
by the president of the court, justified a sentence to forfeit $15. He 
was convicted of this offense and also of the larceny of $75, and was 
sentenced to be dishonorably discharged, forfeiting all pay and 
allowances. Eight days thereafter, before the record had been for- 
warded to the reviewing authority, the court revoked its former sen- 
tence and sentenced the accused to confinement at hard labor for 18 
months and forfeiture of two-thirds of his pay for the same period. 
The reviewing authority returned the record " for reconsideration 
and such consequent revision, if any, of findings or sentence, or both, 
as may be deemed appropriate," with the following further remarks: 

" The attention of the court is invited to the fact that the result 
of approval of the sentence finally imposed in this case would be to 
retain on the retired list, as a recipient of retired pay, a convicted 
thief. If the court was moved to the adoption of the sentence im- 
posed in this case by a reasonable doubt of the guilt of the accused of 
the second specification, such doubt should have caused a finding of 
not guilty thereon. If, however, the accused is guilty as charged, it 



538 DIGEST OF OPINION'S OP THE JUDGE ADVOCATE GENERAL. 

would seem that there can be no doubt whatever as to the impro- 
priety of retaining him on the rolls as a pensioner of the Govern- 
ment." 

The court thereupon revoked its former findings, and acquitted the 
accused of larceny, but sentenced him to confinement at hard labor 
for six months and forfeiture of two-thirds of his pay for a like 
period. 

The court was well within its authority in reassembling, upon its 
own motion, to correct any error of judgment as to finding or sen- 
tence so long as the case was before it. But the procedure actually 
followed in this case indicates vacillation not creditable to the admin- 
istration of justice. First Ave have a conviction of grand larceny and 
a sentence of dishonorable discharge and forfeiture but without con- 
finement at hard labor, which is usually and properly imposed where 
the offense of which the accused is convicted is of such gravity ; sec- 
ond, the revocation of this sentence and the substitution therefor of 
a sentence of confinement at hard labor for a prolonged period (18 
months), with forfeiture of two-thirds of his pay for the same period, 
but without dishonorable discharge, the effect of which, if approved, 
would have been to leave a convicted felon on the rolls of the Army ; 
third, the revocation of this latter sentence and of the finding upon 
which it was based, and the substitution therefor of a finding of not 
guilty of larceny and guilty of a minor offense punishable by forfeit- 
ure of $15, for which, however, the excessive sentence of six months' 
confinement at hard labor and forfeiture of two-thirds of his pay for 
the same period was imposed. This final action of the court has the 
appearance of a compromise between a finding of guilty and one of 
not guilty on the graver offense, and the procedure, taken as a whole, 
indicates that the court felt that a retired enlisted man convicted of 
felony was to be treated with greater leniency than an enlisted man 
on the active list convicted of a similar offense. It was the clear duty 
of the court, having acquitted the accused of grand larceny, to pro- 
ceed to the imposition of a sentence as though that offense had never 
been charged, and any belief on the part of the court that he was 
guilty thereof, should not have influenced the amount of punish- 
ment to be adjudged. A sentence based on evidence which the court 
deems insufficient to convict is illogical and palpably inconsistent 
with elementary principles of justice, and, of course, no distinction 
as to punishment based on conviction of felony should be made be- 
tween active and retired enlisted men. 



WITNESSES: Testimony of wife against husband as witness in cases of 
personal abuse. 

In the case of an officer recently tried, the accused was charged, 
inter alia, of committing a number of acts of personal abuse of his 
wife. When the prosecution offered her testimony, there was objec- 
tion on the part of the defense on the ground of her incompetency as 
a witness. The trial judge advocate ably presented to the court the 
present state of the law, which regards a wife as a competent witness 
against her husband in cases of personal abuse, but the court ex- 
cluded her as such except for the purpose of testifying to one specifi- 
cation. The leviewing authority pointed out the error of the court 
in excluding the wife as a witness as to the other acts charged. 



BULLETIN 1. 

(Bulletin No. 41 is the last of the series for 1915.) 

Bulletin! WAR DEPARTMENT, 

No. 1. J Washington, January 11^ 1916. 

The following digest of opinions of the Judge Advocate General 
of the Army, for the month of December, 1915, and of certain deci- 
sions of the Comptroller of the Treasury and of courts, together 
with a collection of notes on military justice prepared under the 
direction of the Judge Advocate General of the Army, is published 
for the information of the service in general. 
[2255370 K— A. G. O.] 
By order or the Secretary or War : 

H. L. SCOTT, 
Major General, Chief of Staff. 
Official : 

H. P. McCAIN, 

TJie Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

A CORRECTION. 

On page 8 of Bulletin No. 43, War Department, 1914, in the case 
reported under the heading " Reenlistment : After four years' service 
and passing to the reserve," insert the word " not " in the third para- 
graph, first line, between the words " had " and " been." The lan- 
guage should be, " Held., that a soldier who had not been reenlisted," 
etc. 



ENLISTED MEN: As to making up lost time; Army Reserve. 

In the case of enlisted men to be furloughed to the Army Reserve 
who have lost time from service by reason of absence without leave 
(Act of May 11, 1908, 35 Stat., 109) , or by reason of the use of intem- 
perate drugs, alcoholic liquors, etc., or confinement awaiting trial re- 
sulting in conviction (Act of April 27, 1914, 37 Stat., 590), the ques- 
tion was presented whether they were required to make up the time 
so lost before being furloughed to the Army Reserve, or after. 

Held., that it was clearly the purpose of the acts mentioned to 
obtain from enlisted men the measure of service contemplated by 
their enlistment contracts ; that the Army Reserve Act providing for 
seven-year enlistments requires a specified number of years' serirwe 
and that a soldier is not eligible for furlough to the Army Reserve 
until he has completed the full service period of three or four years, 
as the case may be, including any time lost within the meaning of 
the above-mentioned acts. 

(34-052, J. A. G., Dec. 13, 1915.) 

539 



540 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAU 

HEAT AND LIGHT : Allowances to families of officers on temporary duty. 

In the case of officers transferred from one command to another 
while on temporary duty on the Mexican border, it was suggested 
rliat such a change " in most every case makes a change of permanent 
station " resulting in " placing many officers' families in such a posi- 
tion that they cannot draw the officers' heat and light allowance " 
under existing regulations, which provide that an officer's family is 
entitled to draw his heat and light allowance only at his permanent 
or temporary station. 

Held^ that the transfer of an officer from one command to another 
in the temporary service on the Mexican border should not be re- 
garded as ipso facto a change of permanent station, and that for the 
]nirposes of fuel and light allowances for the officer's family at his 
permanent station their status should not be disturbed until there 
has been an actual change of permanent station by the officer. 

(72-315, J. A. G., Dec. 21, 1915.) 



DECISIONS OF THE COIVEPTROLLER OF THE TREASUEY. 

(Digests prepared in the office of the Judge Advocate General.) 

GRATTJITY: As to additional pay for mounts of officer killed in aviation 
accident. 

It is provided by the Act of July 18, 1914 (38 Stat., 516), that in 
the case of an officer or enlisted man killed in an aviation accident 
not the result of his own misconduct, there shall be paid to his widow 
or other designated beneficiary " an amount equal to one year's pay 
at the rate to which such officer or enlisted man was entitled at the 
time of the accident resulting in his death." 

Held^ that the gratuity authorized by this act includes pay for 
mounts where the officer was entitled to additional pay for mounts 
at the time of the accident resulting in his death. (14 Comp. Dec, 
851.) Field furth€7\ that this ruling does not affect other decisions 
holding that additional pay for mounts is not pay proper within 
the laws gi-anting additional pay for foreign service. 

(Comp. W. W. Warwick, Dec' 4, 1915.) 



PAY AND ALLOWANCES: As to pay of officer for mounts while on leave 
of absence with half pay. 

The question was presented Avhether an officer of the Army was 
entitled to pay for mounts for time he was on leave of absence with 
half pay. In the case under consideration the officer was duly 
mounted, and he retained his horses at his post during a leave of 
absence of three months, two months of which was with full pay and 
one month with half pay as provided by section 1265, Revised Statutes, 
and the Act of July 29,' 1876 (19 Stat., 102). Paragraph 1274, Army 
Regulations, provides that officers do not forfeit the right to addi- 
tional pay for mounts by reason of ordinary/ leave. Pay for mounts 
is regarded as in the nature of an allowance and not as pay pro})er 
(21 Comp. Dec, 848), and, following the rule as to commutation of 
quarters (A. R. 1301). 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 541 

Held,, that the officer was not entitled to pay for mounts for the 
time he was in a half pay status; that the half pay status is not such 
a status as requires or justifies a liberal construction of statutes relat- 
ing to pay and commutation, and that if an officer chooses to extend 
his ordinary leave and put himself in a half pay status, he can not 
reasonably expect his allowances, or pay in the nature of an allow- 
ance, to continue. 

(Comp. W. W. Warwick, Dec. 4, 1915.) 



DECISIONS OF COURTS. 

(Digests prepared in the office of the Judge Advocate General.) 

CONTRACTS: Provisions of section 3744, Revised Statutes, construed. 

In a suit by the Government against the New York and Porto Rico 
Steamship Company to recover th© excess cost of procuring trans- 
portation of coal for the Navy Department, over that at which the 
defendant had agreed through correspondence to transport it, the 
ground of defense was that the informal agreement not having been 
embodied in a formal contract in accordance with section 3744, 
Revised Statutes, was void and unenforceable. By this section it is 
made the duty of the Secretaries of War, the Navy, and the Interior 
to cause every contract made by their authority on behalf of the 
Government " to be reduced to writing, and signed by the contracting 
parties with their names at the end thereof"; all the copies and 
papers in relation to the same to be attached together by a ribbon 
and seal, etc. 

Held^ that this statute is for the protection of the Government 
against possible frauds upon it by its officers; that no such protection 
is needed by a private person against a written undertaking signed 
by himself, and that while it is established that a contract not com- 
plying with the statute cannot be enforced against the Govern- 
ment, such a contract may be enforced against the other party. 
" Even when a statute in so many words declares a transaction void 
for want of certain forms, the party for whose protection the re- 
quirement is made often may waive it, void being held to mean only 
voidable at the party's choice." 

( United States v. New York and Porto Rico Steamship Company^ 
decided by the Supreme Court of the United States, Nov. 15, 1915.) 



TAXATION: Power of State to imprison soldier for nonpayment of poll 
tax. 

A noncommissioned officer stationed at Fort Stark, N. H., whose 
parental domicile was New York, married a New Hampshire woman. 
He maintained an apartment in the city of Portsmouth, N. H., for 
his wife where he spent three or four nights a week under military 
authorization. The city of Portsmouth assessed a poll tax against 
the soldier upon the theory that he had acquired a domicile in the 
city, and upon his refusal to pay it, he was arrested and committed 
to jail. In discharging the prisoner from the custody of the State 
authorities, upon a writ of habeas corpus, the Federal District Court 



542 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

for New Hampshire recognized the force of the Government's con- 
tention, supported in principle by numerous authorities, to the effect 
that it is an essential and necessary power of the Federal Govern- 
ment, in the maintenance of its military establishment, to protect its 
soldiers from arrest and imprisonment for poll tax or from other 
restraints and burdens affecting personal liberty imposed by munici- 
pal government through its taxing powers, and that the question 
of domicile or inhabitancy is immaterial. 

The court, however, did not choose to make its decision so sweep- 
ing, but considered it sufficient to hold that while a soldier may be 
so far swi juris that he may for certain purposes establish a domicile 
or residence away from his military station, provided it does not in- 
terfere with his military service, the circumstances must clearly indi- 
cate such an intention and that in the instant case the circumstances 
negatived such an intention, so that the soldier was not an inhabitant 
of the State, that is, was not domiciled in the State within the pur- 
view of the local tax law. The court said in part : 

" It is clear that there was no definite purpose to make the Ports- 
mouth residence, such as it was, a permanent residence. The peti- 
tioner had a parental domicile in New York, and to establish a 
change for any purpose the intention must be clear. Here the mili- 
tary situation was altogether inconsistent with the element of any 
supposed permanency in the City of Portsmouth and away from the 
station of duty. Under such circumstances, the domicile of the hus- 
band would not follow that of the wife under an arbitrary rule ; and 
maintaining the apartment in Portsmouth that his wife might live 
there, and that he might visit her under leave when the circumstances 
should permit, must be accepted as a mere incident of his military 
status, and one entirely subordinate to his duty to the Government 
when viewed in respect to personal taxation and the restraints of 
personal liberty, involved in the enforcement of a personal tax, which 
necessarily would interfere with the free performance of a para- 
mount duty. The petitioner should be discharged from custody 
under city and State authority, and it is so ordered." 

{John' P. Whf'fe, petitioner, v. City of Portsmouth (N. H.), de- 
cided Nov. 30, 1915.) 



NOTES ON ADMINISTRATION OF MILITARY JUSTICE. 

(Prepared under the direction of the Judge Advocate General of the Army 
upon the review of records of general courts-martial trials.) 

CLEMENCY: Recommendations to. 

The review in the Office of the Judge Advocate General of the 
records of trial by general courts-martial, and especially in the cases 
of enlisted men, leads to the belief that possibly the provision in 
paragraph 12 of General Orders No. 70, War Department, 1914, in 
reference to recommendations to clemency, is sometimes lost sight of. 
Members of courts-martial should never hesitate to submit such rec- 
ommendations in the manner therein indicated whenever they believe 
the facts and circumstances in any case justify clemency. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 543 

PLEA OF GUILTY: Duty of president of court-martial respecting. 

The records of the recent trials by general courts-martial disclose 
that in many cases the requirements of paragraph 8, General Orders 
No. 70, War Department, 1914, were not observed. In 154 cases con- 
secutively reviewed 23 of the records showed the presidents of the 
courts to have failed in this respect. That paragraph requires, 
among other things, that in each case where the accused enters a 
plea of guilty the president of the court shall explain to him, first, 
the meaning of such plea, and second, the extent of the punishment 
to which the plea will subject him. Every commander exercising 
general court-martial jurisdiction is expected to exact a full compli- 
ance with these requirements; and in every case where the record 
shows a failure by the president of the court in this regard the re- 
viewing authority should, without delaying action on the sentence 
therefor, require a written explanation by such president to accom- 
pany the record when it is forwarded to the Judge Advocate General. 



BULLETIN 8. 

Bulletin 1 WAR DEPARTMENT, 

No. 8. J Washington, March 8, 1910. 

The following digest of opinions of the Judge Advocate General of 
the Army, for the months of January and February, 1916, and of 
certain decisions of the Comptroller of the Treasury and of courts, 
is published for the information of the service in general. 
[2375247, A. G. O.] 

H. L. SCOTT, 
Secretary of War, ad interim,. 
OrnciAL : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ARMY RESERVE: Enlistment of members of, in Organized Militia and 
employment as stablemen. 

The question was presented whether enlisted men in the Army 
Reserve are eligible for enlistment in the Organized Militia and em- 
ployment as stablemen for militia batteries. The law requires that 
such employees shall be enlisted men of the Organized Militia. 
(38 Stat., 1071.) 

Held, that members of the Army Reserve are not eligible for such 
employment, since the conditions under which the Army Reserve and 
the Organized Militia will be called into active service will usually 
co-exist, so that the necessity of the soldier to rejoin his regiment for 
action would result in leaving a vacancy in the militia where com- 
petent and experienced men are required. 

(.58-051, J. A. G., Jan. 15, 1916.) 



ARMY RESERVE: Medical treatment of members. 

Paragraph 1453, Army Regulations, provides that recently dis- 
charged soldiers, needing hospital treatment, who arrive in New York 
City, San Francisco, or other port on Government transports, may be 
sent to one of the military hospitals in the vicinity and rations in kind 
drawn for them while undergoing treatment. 

Held, that the same rights under similar conditions may and should 
be accorded to enlisted men recently furloughed to the Army Reserve. 

(6-227.6, J. A. G., Feb. 26. 1916.) 



CIVILIAN EMPLOYEES: Ration allowance while under treatment in 
hospital. 

A civilian employed as teamster in the Quartermaster Corps at 
Honolulu, H. T., at $40 a month and rations, having been injured 
while in the performance of his duty, was duly admitted to the post 
544 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 545 

hospital for treatment. No provision is made by law for the payment 
of commutation of rations to civilian employees, and it is expressly 
prohibited by A. R. 1229. 

Ileld^ that as the employee was entitled to rations under his contract 
of em.ployment in accordance with A. R. 1203, the hospital should 
draw his rations in kind and remit the charge of 40 cents a day pre- 
scribed by A. R. 1460. 

(5-242; J. A. G., Feb. 26, 1916.) 



CLAIMS: As to compromise of Government claims. 

A garbage crematory was protected by the contractor for one 
year under an indemnity bond against defects in material and work- 
manship. Within the year the Government made repairs at an ex- 
pense of $100. There was a disagreement whether the whole amount 
was chargeable against the contractor and it was proposed to com- 
'promise the claim by the payment to the United States of $45, which 
proposition was reported by the local constructing quartermaster 
as a " fair offer." 

Ileld^ that if the contractor's liability was $100, the War Depart- 
ment would have no authority to compromise by accepting a smaller 
sum, since claims in favor of the Government, other than those aris- 
ing under the postal laws, can only be compromised by the Secretary 
of the Treasury under authority of Section 3469, Revised Statutes. 
(21 Opins. Atty. Gen., 494; 23 Id., 631). _ 

Held further, that if upon further consideration it be ascertained 
that the cost of the repairs properly chargeable to the contractor 
was $45, and not $100, it should be so reported and the case settled 
on the true basis. 

(76-742, J. A. G., Feb. 10, 1916.) 



COURTS-MARTIAL: Effect of sentence of dishonorable discharge upon 
prior unserved enlistment. 

A deserter from the Army enlisted in the Marine Corps. His 
organization therein was detached for service with the Army, and 
during such service he v/as tried by Army court-martial and " dis- 
honorably discharged the service of the United States." 

Held, that the sentence to be " dishonorably discharged the service 
of the United States " was a complete expulsion of the enlisted man 
from the service of the United States and operated to terminate his 
unserved enlistment with the Army, although the court-martial knew 
nothing of his desertion. 

(28-130, J. A. G., Jan. 13, 1916.) 



EIGHT-HOUR LAW : Not applicable to chauffeurs. 

Held, that a chauffeur is not within the purview of the eight-hour 
law which applies to laborers and mechanics. 
(32-223, J. A. G., Jan. 22, 1916.) 

93668°— 17 35 



546 DIGEST OF OPINIOjSTS OF THE JUDGE ADVOCATE GENERAL, 

ENLISTED MEN: Commutation of rations. 

Bequest was made for authority to pay commutation of rations 
to three certain enlisted men at a garrisoned post, on the ground 
that the hours during which they were required to work made it im- 
practicable for them to be subsisted Avith any organization. 

Ileld^ that the provisions of the Army Appropriation Act for the 
payment of conunutation of rations to enlisted men " when stationed 
at places where rations in kind can not be economically issued "' is 
tantamount to a prohibition against the payment of such commuta- 
tion to enlisted men serving at a garrisoned post, and that the pro- 
posed payment would be contrary to the statute and forbidden by 
paragraph 1229, Army Regulations. 

(6-228, J. A.. G., Jan. 8, 1916.) 



ENLISTED MEN: Reenlistment after four years' service. 

The question was presented whether an enlisted man after having 
served four of the seven years of his enlistment and is discharged 
for the purpose of reenlistment is required to reenlist immediately, 
or whether he " has the privilege of remaining out the authorized 
three months before reenlistment.'' 

Held., that the provision for the discharge of an enlisted man at 
the end of four years under the Arni}^ Reserve Act (37 Stat., 590) 
does not contemplate that he shall thereby become a civilian, but is 
for the purpose of substituting a new enlistment contract for the 
old, without interruption of the service status of the soldier, and 
that, therefore, a discharge at the end of four years' service under 
the Army Reserve Act can be given only upon reenlistment. 

(6-300, J. A. G., Jan. 5, 1916.) 



FOBEIGN SEHVICE: Construction of statute relating to tours of duty.- 

The Act of March 4, 1915 (38 Stat., 1078), provides that no officer 
or enlisted man of the Army shall, except upon his own request, be 
required to serve in a single tour of duty for more than two years 
in the Philippine Islands, nor more than three years in the Panama 
Canal Zone, except in case of insurrection or actual or threatened 
hostilities. 

Held, that if a tour of duty is extended at the request of an officer 
or enlisted man, he may be required to serve the full period extended. 
(6-160, J. A. G., Jaii. 28, 1916.) 



MEDICAL ATTENDANCE: Officer on leave of absence. 

An officer wliile on leave of absence suddenly became ill at an arniy 
])Ost and requested that he be taken up on " sick report." The physi- 
cian employed by the Government to furnish medical attendance for 
the post had left the post for the day and could not be located. An- 
other physician was called in and upon his recommendation the officer 
was sent to the city hospital, where he remained under the care of the 
latter physician until he was able to leave the hospital, after nine 



DIGEST OF OPIISriONS OF THE JUDGE ADVOCATE GENERAL. 547 

days, when he returned to the post and received treatment b}' the post 
phj'sician. Accounts were submitted for the pa3'ment by the Govern- 
ment of the hospital and physician's bills. By a provision contained 
in the appropriation item for the medical care and treatment of 
oflicers and enlisted men by civilian physicians or in private hospitals 
it is declared that "this shall not apply to officers and enlisted men 
who are treated in private hospitals or by civilian physicians vcliile 
on furlough^ 

Held, that the accounts were not payable from public funds, not 
only because the officer was in a leave status, but also because it was 
not shown that the necessary treatment could not have been had 
under the facilities of the post, except, possibly, the first or emer- 
gencv treatment. 

(G-227.6, J. A. G., Feb. 19, 1916.) 



PAY AlTD ALLOWANCES: Continuous service pay of enlisted men. 

Tlie question was presented whether a soldier serving an enlist- 
ment entered into on or after November 1, 1912 (the date the T-year 
enlistment law took effect), must serve over 2 years or over 3^ years 
prior to a discharge for the convenience of the Government in order 
to entitle him, upon reenlistment, to be placed in a higher enlistment 
period with reference to continuous service pay. The Act of May 
11, 1908 (35 Stat., 109), relating to continuous service pay, proA^des 
that " any soldier wdio receives an honorable discharge for the con- 
venience of the Government after having served more than half of 
his enlistment shall be considered as having served an enlistment 
period within the meaning of this act," and the Act of August 24, 
1912 (37 Stat., 590), establishing the Army Reserve contains the 
provision that " for all enlistments hereafter accomplished under the 
provisions of this act, four years shall be counted as an enlistment 
period in computing continuous-service pay." 

Ucld^ that the above mentioned provisions of the acts of 1903 
and 1912 are h% yarl Tnaterici^ the purpose being to regulate continu- 
ous service pay, and that as the act of 1912 declares that four years 
shall constitute an enlistment period in computing continuous service 
pay, the act of 1908 operates with reference to the said four-year 
period, and hence a soldier enlisted under the act of 1912 who receives 
an honorable discharge for the convenience of the Government after 
having served more than two years is entitled to be credited with an 
enlistment period for such service. 

(28-231, J. A. G., Feb. 26, 1916.) 



PENALTY ENVELOPES: Use of, in connection with the expenditure of 
company fund. 

A company commander used penalty envelopes in conducting cor- 
respondence for the purchase from the company fund of beer for 
a special dinner of the company mess. The post-office authorities 
questioned whether such use of the penalty envelope was authorized 
as relating "exclusively to the business of the Government of the 
TTnited States." (19 Stat., 319.) A company commander is required 



548 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

to disburse the compaii}' fund solely for the benefit of the company. 
(A. E., 327.) 

Held^ that Congress, having prohibited the sale of or dealing in 
intoxicating liquors upon any premises used for military purposes, 
the presumption is that the statute proceeded upon the theory that 
the use of intoxicating liquors as a beverage is detrimental and not 
beneficial to persons in the military service; that upon this theory 
an expenditure of th6 company fund for such purpose would not be 
" solely for the benefit of the company " as directed by A. E. 327, 
and therefore unauthorized, and the use of the penalty envelope con- 
sequently was not for the business of the Government and was 
unauthorized. 

Held further^ that as to purchases from the company fund of 
articles properly to be regarded as "solely for the benefit of the 
company," the use of penalty envelopes therefor would be authorized 
as relating to the business of the Government, the company fund 
being a Government agency. 

(22-020, J. A. G., Jan. 28, 191G.) 



PUBLIC RECORDS: Procedure for the disposition of useless files and 
papers. 
The Act of February 16, 1889 (25 Stat., 672), provides that— 
"Whenever there shall be in any one of the Executive Depart- 
ments of the Government an accumulation of files of papers, which 
are not needed or useful in the transaction of the current business of 
such Department and have no permanent value or historical interest, 
it shall be the duty of the head of such Department to submit to 
Congress a report of that fact, accompanied by a concise statement 
of the condition and character of such papers." 

The act further provides that upon being duly authorized, as set 
forth therein, it shall be the duty of the head of the department to 
sell or otherwise dispose of the papers upon the best obtainable 
terms, depositing the proceeds in the Treasury. The said act of 1889 
was amended so as to include in its provisions " any accumulation of 
files of papers of a like character therein described now or hereafter 
in the various public buildings under the control of the several 
Executive Departments of the Government." (28 Stat., 933.) 

Ileld^ that the Act of 1889 as amended prescribes the procedure 
for the disposition of all useless files of papers under the jurisdiction 
of the several departments, whether at the seat of Government or 
elsewhere, and that it operates to prohibit the destruction of records 
save as therein prescribed. 

(66-322, J. A. G., Jan. 7, 1916.) 



EEIMBUE-SEMENTS : Expenditure of private funds for use of Govern- 
ment. 
A chaplain of an organization which was about to go into camp 
requested authority to incur expenses for motion pictures and oth^r 
means of diversion at the recreation tent. Before receiving a re- 
sponse from the department commander, which disapproved the pro- 



DIGEST OP OPINIONS OP THE JUDGE ADVOCATE GENERAL. 549 

posed expenditure, the chaplain went ahead and put a motion picture 
machine in operation and paid the cost from his own private funds. 
Upon his application to the War Department to be reimbursed, it 
was held that reimbursement could not be authorized in view of the 
ruling of the Comptroller of the Treasury that " the expenditure of 
l^rivate funds for supplies for the use of the Government is not 
authorized except under stress of urgent and unforeseen public 
necessitv." (16 Comp,, 519.) 
(40-100, J. A. G., Jan. 10, 1916.) 



STATE COTJBTS: Arrest of enlisted man in civil proceeding for debt. 

Section 1237, Revised Statutes, provides : 

" No enlisted man shall, during his term of service, be arrested on 
mesne process, or taken or charged in execution for any debt, unless 
it was contracted before his enlistment, and amounted to twenty 
dollars when first contracted." 

A writ for the arrest of an enlisted man was issued by State au- 
thorities in a civil proceeding for debt under the laws of the State 
relating to absconding debtors, the enlisted man sought being about 
to leave the jurisdiction under military orders. 

Held,) that the writ of arrest, not being in a criminal action but 
being an auxiliary process in a civil proceeding, and therefore m.ense 
process, and the debt having been contracted after the soldier's 
enlistment, the arrest would be illegal in view of section 1237, 
Revised Statutes, 8upra. 

Held, further,, that in case of a criminal prosecution and the issu- 
ance of a warrant of arrest of an enlisted man by State authorities, 
it would be the duty of the comm-anding officer, under the 59th 
Article of War, to interpose no obstacle to the arrest, but on the 
other hand to assist the civil authorities in executing the v/rit. 

(14-233, J. A. a, Feb. 25, 1916.) 



DECISIOI^^S OF THE COMPTROLLEE OF THE TREASTJEY. 

(Digests prepared in the office of tlie Judge Advocate General.) 

CLAIMS: Reimbursement for expenses. 

Two vouchers were submitted for decision as to their legality. 
The first was for $15.01 in favor of the widow of a deceased officer 
" for hauling his personal effects from railroad station at Plainfieid, 
N. J., to storage, per receipted bill." The second voucher was for 
$3.25 for " reimbursement of expense incurred by payee, a clerk in the 
Medical Corps, U. S. Army, for cartage of his household goods, 
weighing 2343 lbs., from freight station to residence at Lyndhurst, 
N. J., upon change of station pursuant to orders." 

Held,, that there is no law, or regulation having the force of law, 
which makes provision for the reimbursement of a person, as in the 
two cases submitted, who hauls his baggage upon his own responsi- 
bility at his own expense; that if the hauling in question in both 
cases be a proper charge against the United States, it was an expense 



550 DIGEST OF OPIISriONS OF THE JUDGE ADVOCATE GENERAL. 

Avhicli should have been incurred by the Quartermaster Corps of the 
Army and not by the persons whose proi)erty it was; and that the 
hauling being voluntary on the part of the persons concerned, reim- 
bursement of the cost is not authorized. 
" (Comp. ^y. ^y. Warwick, Feb. 26, lOlG.) 



CONTRACTS: Delivery of supplies after expiration of contract period. 

By contract dated April 26, 1915, for furnishing hay for the troops 
on the Mexican border, a firm agreed to furnish and deliver, f. o. b. 
cars at designated stations, during the period July 1 to September 30, 
1915, in car loads, alfalfa hay in accordance with specifications, at 
rates of 78.88 and 91^ cents per cwt., during the respective months. 
By similar contract dated August 5, 1915, the same firm agreed to 
furnish the same quality of hay during the month of October, 1915,. 
at 73^ cents per cwt. About the 15th of September, by reason of an 
unexpected increase in the troops in the territory covered by the con- 
tracts, calls were issued upon the contractor for the immediate de- 
livery of about 233,000 pounds of hay, under the April contract. 
Deliveries were made within a reasonable time, in the opinion of the 
depot quartermaster, but not until some time in October, after the 
expiration of the contract and within the period covered by the later 
contract. 

Ileld, that the hay having been ordered under the contract of April 
26, 1915, for delivery under said contract, to meet needs arising dur- 
ing the period covered by said contract, payment could only be made 
in accordance Avith the terms thereof. Ilcld further^ that if the con- 
tractor unreasonably delayed in filling orders given under said con- 
tract, the proper remedy was to decline to accept deliveries when 
tendered as under such contract, but " having accepted said deliveries, 
the Government is estopped from paying contractor otherwise than 
at the rate fixed by said contract, subject, of course, to a deduction 
for any and all actual damages occasioned the Government by any 
unreasonable delay on the contractor's part in making such deliv- 

(Comp. W. W. Warwick, Jan. 3, 1916.) 



E3MLISTED MEN: Employment as laborers. 

An enlisted man of the Coast Artillerv Corps while detailed for 
duty with the Organized Militia of a State was employed, by per- 
mission of his commanding officer, as laborer in installing dummy 
armament in the militia armory at an agreed compensation of $2.25 
per day. 

Held, that the employment under the conditions stated was incom- 
patible with the status and obligation of an enlisted man; that if 
the work was such as could be required of him under his general obli- 
gations as a soldier he was not entitled to additional pay therefor, 
and that if it was proper to detail him to perform the duty so as to 
entitle him to extra duty pay therefor, the per diem prescribed by 
laAv for extra duty Avas the measure of his allowance. 

(Comp. W. W. "Warwick, Dec. 10, 1915.) 



DIGEST OF OPIISTIONS OF THE JUDGE ADVOCATE GENEEAL. 551 

HEAT AND LIGHT : Allowances undei' varying conditions to officer on 
commutation status. 

In the case of an officer whose maximum allowance of quarters was 
seven rooms, decision was requested as to the proper basis of pay- 
ment of commutation of heat and light under the following condi- 
tion: At Washington, D. C, on duty October 1-10, 1915, he occupied 
private quarters consisting of 11 rooms, and October 11-15, 1915, he 
occupied private quarters consisting of 7 rooms. On October 15, 
1915, he took station at the Medical Supply Depot, New York City, 
and occupied two private rooms until November 30, 1915, his family 
having continued to occupy private quarters consisting of seven 
rooms in Washington. On November 30, 1915, he left his station on 
leave of absence for two months, and during the month of December, 
while on leave of absence, he occupied quarters consisting of seven 
rooms in Washington, D. C. 

Held., that the officer's maximum allowance of quarters being seven 
rooms and he having occupied that many or more October 1-11, he 
was entitled to commutation of heat and light for seven rooms for 
the said period ; that from October 15 to November 30, having occu- 
pied only two rooms as quarters in New York, he was entitled to com- 
mutation of heat and light for only two rooms for said period; that 
he was entitled to no commutation for heat and light for the month 
of December. 1915, for the reason that no quarters w^ere occupied by 
himself or his family at his official station during said period, and 
that there is no authority of law for furnishing heat and light for 
quarters occupied by an officer's family at any place other than his 
official station. 

(Comp. W. W. Warwick, Jan. 31, 1916.) 



PUBLIC PHOPERTY: When shipping officer is responsible for loss. 

A surveying officer designated to ascertain responsibility for the 
loss of a box of hats which was loaded with other property in a box car 
for shipment from Camp Stotsenburg to Manila, P. I., found and 
reported that the hats were stolen sometime after they were loaded 
into the car and before the car was sealed, and it was recommended 
that the railroad company be charged with tlie value of the hats. 

Held, that as the car was loaded by the GoAernment and had not 
been accepted and sealed by the railroad company, the shipping 
officer was responsible for the loss; that as the car was shipped sealed, 
it Avas his duty to protect the car until accepted and sealed by the 
railroad company. 

(Comp. W. W. Warwick, Feb. 2, 1916.) 



PURCHASE OF SUPPLIES: P.equirements as to advertising in purchasing 
motor trucks. 

A certain quartermaster having been authorized to purchase two 
light delivery trucks at a cost not to exceed $1290 each, did not 
advertise for proposals, but "after obtaining prices, specifications, 
and personally examining into the merits, hill-climbing ability, and 
cost of maintenance and operation he decided that the — truck 



552 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

was the most, suitable and economical for the purpose for which re- 
quired, and the purchase was made accordingly." 

Held, that the trucks having been purchased without affording an 
opportunity to other dealers to bid in a competitive way on specifica- 
tions embodying requirements similar to those which were to be met 
by the make of truck selected, such purchase was contrary to the 
provisions of Section 3709, Revised Statutes. The iiuditor's disal- 
loAvance was affirmed. (See Bui. No. 14, War Department, 1915, p. 8.) 

(Comp. W. W. Warwick, Jan. 13, 1916.) 



DECISIONS OF THE COTJUTS. 

(Digests prepared in the office of the Judge Advocate General.) 

CONTRACTS: Unforeseen difficulties in performance of. 

A certain steel company was awarded a contract for furnishing the 
Government Avith 18-inch armor plate in conformity with specifica- 
tions and drawings attached and made a part of the contract. The 
Government engaged to receive the plates when manufactured, tested 
and approved as provided. The contract contained a clause provid- 
ing for liquidated damages of 1/30 of 1% of the contract price of 
all the armor plate remaining undelivered for each and every day of 
delay in the completion of the contract not due to " unavoidable 
causes, such as fires, storms, labor strikes, actions of the United 
States, and so forth." There was considerable delay in completing 
deliveries due to alleged difficulties encountered in the manufacture 
of the plates by reason of disappointment in the application to 18- 
inch plate of a treatment or face-hardening process deduced from 
the formula which, it was contended, " the contractor and every 
other manufacturer of armor plate in this and every foreign country 
had followed in the manufacture of armor plate, and which was 
I'ecognized by authorities on the subject as the one which would give 
the best results." It was asserted that theretofore no face-hardened 
armor 18 inches in thickness had been manufactured in this or any 
other country and no information respecting the process to be em- 
ployed in its manufacture was obtainable. The contractor contended 
that the causes of the delay were unavoidable and unforeseen by both 
parties when the contract was made and that the delays were there- 
fore excusable and of the character described in the contract, that 
is, "unavoidable causes, such as fires, storms, labor strikes, actions 
of the United States and so forth." The Ordnance Department, 
however, made a deduction of $7,564.08 as resulting liquidated dam- 
ages under the contract. The contractor brought suit in the Court of 
Claims to recover the amount so deducted, and from an adverse 
decision of that court appealed to the Supreme Court. In sustaining 
the decision of the Coui't of Claims the Supreme Court, among other 
things, said : 

" Ignorance of the scientific process necessary for face-hardening 
18-inch armor plate is asserted to be an unavoidable cause of the char- 
acter of the enumeration of article 8 of the contract, that is, ' such 
lis fires, storms, labor strikes, action of the United States, etc' The 
contention is that it is the same 'genus or kind,' because (1) it was 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 553 

not foreseeable when the contract was made; (2) was not the result 
of any act of neglect on the part of the claimant; (3) was not a cause 
the company could prevent. * * * The contention that the al- 
leged causes can be assigned to such category creates some surprise. 
It would seem that the very essence of the promise of a contract to 
deliver articles is ability to procure or make them. But claimant 
saj^s its ignorance was not peculiar, that it was shared by the world 
and no one knew that the process adequate to produce 14-inch armor 
plate would not produce 18-inch armor plate. Yet claimant shows 
that its own experiments demonstrated the inadequacy of the accepted 
formula. A successful process was therefore foreseeable and dis- 
coverable. And it would seem to have been an obvious prudence to 
have preceded manufacture, if not engagement, by experiment rather 
than risk failure and delay and their consequent penalties by extend- 
ing an old formula to a new condition. 

" But even if this cannot be asserted, the case falls within The 
Ilarrimcm (9 Wall., IGl, 172), where it is said that 'the principle 
deducible from the authorities is that if what is agreed to be done is 
possible and lawful, it must be done. Difficulty or improbability of 
accomplishing the undertaking Avill not avail defendant. It must 
be shown that the thing cannot by any means be effected. Nothing 
short of this will excuse performance.' 

"And it was held in Sun Frmthn^j & PuhlisMng Ass^n v. Moore 
(183 U. S., 642) that ' it was a well-settled rule of law that if a party 
by his contract charges himself with an obligation possible to be 
performed, he must make it good, unless its performance is rendered 
impossible by the act of God, the law or the other party. Unfore- 
seen difficulties, however great, will not excuse him.' Cases were 
cited, and it was said the principle was sustained by many adjudica- 
tions." 

{Carnegie Steel Co. v. United States, decided by the Supreme 
Court of the United States, Feb. 21, 1916.) 



EOESES: Claims for loss of, in military service. 

In a recent suit brought by an officer of the Army in the Court of 
Claims, for reimbursement for the loss of a horse in the military 
service, the court overruled its decision in the Ilardie vase (39 C. 
Cls., 250), and held that there was no aiithority for allowance of 
the claim. 

In the Ilardie case reimbursement was claimed and allowed under 
tlie provisions of section 3482, Kevised Statutes, as amended by the 
Act of June 22, 1874 (18 Stat., 193), which authorized the reimburse- 
ment of officers for a limited time for horses lost in the military 
service not due to the fault or negligence of such officer. The time 
limit for filing such claims was extended by the Act of January 9, 
1883 (22 Stat., 401), which provided: 

" That the time for filing claims for horses and equipments lost 
by officers and enlisted men in the military service of the United 
States, v/hich expired by limitation on the thirty-first day of De- 
cember, eighteen hundred and seventy-five, be, and the same is 
hereby, extended to one year from and after the passage of this act; 
and that all such claims filed in the proper department before the 



554 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

passage of this act shall be deemed to have been filed in due time, 
and shall be considered and decided without refiling. 

" Sec. 2. That all claims arising under the act approved March 
third, eighteen hundred and forty-nine, entitled 'An act to provide 
for the payment of horses and other property lost or destroyed in 
the military service of the United States,' and all acts amendatory 
thereof, which shall not be filed in the proper department within one 
year from and after the passage of this act shall be forever barred, 
and shall not be received, considered, or audited by any department 
of the Government." 

In jthe Ilardle case the court gave particular consideration to the 
phraseology of the Act of 1883, and held that the words " received, 
considered, or audited," used in connection with the phrase " any 
department of the Government," indicated that the statute was 
intended " to limit the jurisdiction of the executive department of 
the Government, and not to limit the jurisdiction of this court which 
has been exercised under the Acts of 1819 and 1871," and that the 
claim having originated within six years was w^ithin the general 
jurisdiction of the court, which was held not to be affected bv the 
Act of 1883. 

In overruling the Ilardle ca^e Judge Dov^ney, speaking for the 
court, among other things said: 

" The decision in the Ilardle case seems to us faulty, and after 
careful reconsideration of the whole matter we conclude that it has 
been a mistake to follow it, and that it cannot meet with our further 
approval. It seemed proper enough, in pursuance of the usual 
policy of following established precedents, to adopt the reasoning 
of that case to the general effect that the act of 1883 was not intended 
to deprive this court of its jurisdiction, but it now seems apparent 
on further investigation that the court in that case w^as in error in 
that, among otherlthings, it was taking for granted or assuming the 
existence of a jurisdiction which at the time of and before the pas- 
sage of the act of 1883 did not in fact exist at all except as to any 
possible claims which might have been presented to it or the proper 
auditor before January 1, 1876." 

{Grifffths V. United States, decided bv Court of Claims, Jan. 17, 
191G.) 

PAY AND ALLOWANCES: Extra duty pay. 

r A former enlisted man brougiit suit in the Court of Claims for 
extra duty pay alleged to be due him for services as telephone and 
telegraph operator at the general hospital, Presidio of San Fran- 
cisco, from November 8, 1900, when he was transferred to the hos- 
pital, to April 24, 1903, when he was discharged by reason of the 
expiration of his term of enlistment. He was assigned to this duty 
by verbal orders of the surgeon commanding and was excused from 
other duties, calls, details, and inspections. The regulations in 
force at the time provided that " enlisted men of the several staff 
departments will not be detailed on extra duty without authority 
from the Secretary of War. They are not entitled to extra duty 
psvy for services rendered in their respective departments." A. K. 
(1895) 167, (1901) 185. It is provided by statute (K. S., Sec. 1235) 
that detail for employment at " constant labor" shall be "only upon 



DIGEST OF OPIISriONS OF THE JUDGE ADVOCATE GENERAL. 555 

the written order of a commanding officer, wlien such detail is for ten 
or more days." 

lleld^ that while section 1235, Revised Statutes, was not intended 
to preclude a recovery of extra duty pay due where there had been a 
detail to extra duty by competent authority, although not in writ- 
ing, and when extra duty entitling the enlisted man to extra pay 
under the statute had been actually performed, it was evident that 
the services for which the claimant sought extra compensation was 
not extra duty within the statute, inasmuch as he was on regular 
duty pertaining to the hospital service, which he as a member of 
the Hospital Corps was bound to perform without extra pay in ac- 
cordance with the Act of July 13, 1892 (27 Stat., 120), which pro- 
vided, in substance, that all necessary hospital services shall be per- 
formed by the members of the Hospital Corps. 

{United States v. Ross, decided bv the Supreme Court, Jan. 10, 
191G.) 

In United States v. Lincoln C. Andrews (decided Feb. 21, 1916), 
the Supreme Court of the United States affirmed the judgment of the 
Court of Claims allowing an officer of the x\rmy half pay for time 
during a certain leave of absence granted in excess of the statutory 
allowance prescribed by Revised Statutes 1265, the War Department 
having granted the leave with half pay for a definite period and 
afterwards notified the officer that while his leave of absence was not 
revoked his absence thenceforth would be without pay. 

The court held that the pay of an officer of the Army is a statu- 
tory incident of the offi-ce; that the statute prescribes the pay of an 
officer while on leave, and that it is beyond the power of the ex- 
ecutixe authority to grant a leave of absence on condition that the 
pay shall be other than what the statute prescribes ; and further that 
the acceptance of a leave assumed to have been granted upon such 
condition dees not constitute a legal Avaiver or estoppel. 

In Butler v. Sheriff of Colmnhia County^ Florida (decided Feb. 
21, 1916), the Supreme Court of the United States reviewed the 
legality of a statute of the State of Florida, which is similar to that 
of the majority of the States of the Union, requiring citizens to 
work on the public roads. It was contended that the statute im- 
posed involuntary servitude in violation of the 13th Amendment, 
and that its enforcement would deprive persons of their liberty and 
property without due process of law contrary to the 14th Amendment. 

The court held that from Colonial da^'s to the present time con- 
scripted labor has been much relied on for the construction and 
maintenance of roads, the system having been introduced from 
England; that the 13th Amendment was adopted with reference to 
conditions existing since the foundation of the Government, and it 
introduced no novel doctrine with respect to services always treated 
as exceptional and " certainly was not intended to interdict enforce- 
ment of those duties which individuals owe to the State, such as 
service in the army, militia, on the jury, etc." The court further 
held that there was no merit in the claim that a man's labor is prop- 
erty the taking of which without compensation by the State for the 
building and maintenance of public roads violates the due-process 
clause of the 14th Amendment. 



BULLETIN 13. 

Bulletin 1 WAK DEPARTMENT, 

No. 13. J Washington, Mmj 6, 1016. 

The folloAving digest of opinions of the Judg;e Advocate General 
of the Army, for the months of March and April, 1916, and of cer- 
tain decisions of the Comptroller of the Treasury, together with 
notes on military justice prepared under the direction of the Judge 
Advocate General, is published for the information of the service in 
general. 

[2375247 A— A. G. O.] 
By order of the Secretary of War : 

TASKEE H. BLISS, 
Major General, Acting Chief of Staff. 
Official : 

H. P. McCAIN, 

2' he Adjutant General. 



OPINIONS OF THE JITBGE ADVOCATE GENEEAI. 

CONTRACTS: Annual supplies — quantity contemplated by the agreement. 

A contract was entered into with a concern for furnishing for the 
Army such quantity of ash cans as required for the Army during 
the fiscal year, the estimated number being stated in the advertise- 
ment as 4,000 cans. Subsequent to the making of the contract, a new 
use was found for ash cans— their use as cottee boilers, a purpose in 
no v,dse related to their normal use — and as a result the number 
required was greatly in excess of the original estimated quantitj^ 

Ileld^ that the contractors were obliged to furnish ash cans under 
their contract only for the purpose contemplated by the agreement, 
that is, their use as ash receptacles or some related use, and were 
not obliged to furnish them for use as coffee boilers. 

(76-700, J. A. G., April 15, 1916.) 



COURTS-MARTIAL: Power to reduce a noncommissioned officer in grade. 

The question was submitted whether a general court-martial has 
power to reduce a noncommissioned officer to a lower grade. 

Held, that while by sentence of a court-martial a noncommissioned 
officer may be reduced to the ranks, a court-martial has no power to 
reduce him to a lower grade of noncommissioned officer, as the latter 
procedure involves an appointment which a court-martial is not 
authorized to make. 

(6-151.1, J. A. G., April 15, 1916.) 

05G 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 557 

DETACHED SERVICE: Officer performing staff ride exercises. 

An officer who in the performance of staff ride exercises was 
accompanied by troops requested that he be credited with duty with 
troops for the period so engaged, under the act of April 27, 1914 
(38 Stat., 357), which provides: 

" Temporary duty of any kind hereafter performed with United 
States troops in the field for a period or periods the aggregate of 
which shall not exceed sixty days in any one calendar year * * * 
shall * * * be counted as actual presence for duty with such 
(troop, company, etc,.) organization or command." 

Held, that, as it is not essential to a staff ride that there be any 
troops present and that the presence of a small body of troops does 
not alter the character of the exercises, the officer was not entitled to 
credit for service with troops as requested. 

(6-124.4, J. A. G., April 13, 1916.) 



ENLISTED MEN: Promotion to grade of second lieutenant. 

In the Act of July 30, 1892 (27 Stat., 336), providing for a com- 
petitive system of examination of enlisted men for commission as 
second lieutenants, one of the requirements of candidates is that they 
must have served honorably not less than two years in the Army. 
The Act of March 3, 1911 (36 Stat., 1045), prescribes that the order 
of appointments to fill vacancies in the grade of second lieutenant 
shall be, (1) cadets graduated ■ from the United States Military 
Academy, (2) enlisted men whose fitness has been determined by 
competitive examination, and (3) candidates from civil life. 

Held, in the case of an enlisted man who had not served two years 
in the Army, that he was not eligible for examination and appoint- 
ment as of the enlisted men class, but that he was eligible for exam- 
ination for appointment as of the civilian class, the term " candidate 
from civil life," etc., in the Act of 1911 evidently being intended to 
impose no other restriction than that of age limits, as it would be 
unreasonable to deny a man the right of appointment as a second 
lieutenant on account of his having had service in the Army as an 
enlisted man. 

(64-213, J. A. G., April 18, 1916.) 



PAY AND ALLOV/ANCES: Officer in arrest and confinement; deduction of 
pay. 

An officer was aajuageci in contempt or court in connection with 
divorce proceedings and confined in jail for several days until he 
had agreed to obey the decree of the court. 

Held, that the officer was not entitled to pay for the time he was 
absent in confinement, as the case came within the sense of the pro- 
hibition of paragraph 1371, A. R. 

(74-111.4, J. A. G., April 15, 1916.) 



PSIVATE PROPERTY: Civilian clothing lost by enlisted men. 

A chest containing the personal effects of an enlisted man was 
broken open while being transported, incident to the service, on a 
U. S. transport in charge of the Quartermaster Corps. Several 



658 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

articles of civilian clothing were stolen, including a suit of clothes, 
extra pair of trousers, hat, and shoes. 

lleld^ that the soldier was not entitled to reimbursement for the 
civilian clothing as the Secretary of Vv'ar could not properly certify 
that such articles were "reasonable, useful, necessary, and proper" 
for the soldier '• while in quarters, e;igaged in the public service, in 
the line of duty," within the meaning of the Act of March 3, 1885 
(23 Stat., 350), relating to claims for private property lost or 
destroved. 

(18^01, J. A. G., April 1, 1916.) 

T)ECISI05^S OF THE COMPTEOLLER OF THE TREASITEY. 

(Digests yrepared in tlie office of the Judge Advocate General.) 

CIVILIAN Ej\5PL0YEES: Burial expenses of clerk, Quartermaster Corps. 

A clerk of the Quartermaster Corps with station at Fort Sam 
Houston, Texas, died w^hile on leave of absence wdthout pay at San 
Antonio, Texas. The body was buried at private expense and the 
widow applied for reimbursement. In the Sundry Civil Appropria- 
tion Act of March 3, 1915 (38 Stat., 843), provision was made for — 
" interment, or preparation and transportation to their homes, of the 
remains of civil employees of the Army in the employ of the War 
Department who die abroad, in Alaska, in the Canal Zone, or on 
Army transports, or who die v/hile on duty in the field or at military 
posts within the limits of the United States; '•' * *." 

Held, that reimbursement was not authorized because the appro- 
priation contemplates an expense to be incurred by the Quarter- 
master Corps, and further, that the appropriation is only applicable 
in the case of a civilian employee who dies while on duty in the field 
or at a military post, and that the instant case did not come within 
either of these conditions. 

(Comp. W. W. AVarwick, April 12, 191G.) 

CONTRACTS: Breach; settlement of damage by Auditor. 

A contractor for furnishing oats to the Quartermaster Corps, 
having failed to make a certain delivery at the time required, a sup- 
ply of oats for temporary needs was purchased in the open market 
in accordance with the terms of the contract, at an excess cost of $64 
over the contract rate. The contractor refused to remit this amount 
and the question was submitted whether the disbursing officer was 
authorized to deduct it from a voucher covering supplies furnished 
by the contractor under a subsequent contract. 

' Held, that such deduction w^as proper, but that as the contractor 
liad declined to certify the voucher with such tleduction therefrom 
and to accept payment of the net amount, the papers should be for- 
warded to the Auditor for the War Department for settlement. 
(Comp. W. W. Warwick, Feb. 12, 1916.) 



HEAT AND LIGHT: Conditions governing payment of commutation of heat. 
Certain officers receiving commutation of heat (A. R., 1036), pur- 
chased their coal from the Quartermaster Corps at the GoAcrnment 
contiact rate. 



DIGEST OF OPINIOIS^S OP THE JUDGE ADVOCATE GEN^EKAL. 559 

Held^ that the provision in the act of March 4, 1915 (S8 Stat., 
1069), " for commutation of quarters, and of heat and light, to com- 
missioned officers, * * * " contemphites the payment of commu- 
tation of heat to officers only where it is impracticable to furnish 
them fuel in kind, and that if. the Government can and does fur- 
nish fuel in kind to an officer, whether occupying public quarters or 
quarters other than public, he is entitled to no commutation for heat 
and should be charged for only the fuel supplied him in excess of his 
authorized allowance for the quarters occupied. 

(Comp. AV. W. Warwick, March 9, 191G.) 



PAY AND A1I.0WANCES: Liability of soldier's deposits for indebtedness 
to United States and to post exchang-e. 

A soldier who was discharged for fraudulent enlistment owed 
$1.50 to a quartermaster laundry and $3 to a post exchange, and the 
question was submitted whether these debts were properly chargeable 
against pay and clothing credits and, if not, whether they were a 
proper charge against a deposit of $10 made by the soldier as shown 
by his deposit book. 

Held, that the repudiation of the soldier's contract for fraud 
placed him in the position of having legally earned no pay or allow- 
ances, and having earned none there were none unpaid with which 
to pay his indebtedness to the laundry and post exchange, except 
that the laundry service having been performed by the government at 
public expense should be regarded as an advance of pay and the 
appropriation for the laundry should be reimbursed from the appro- 
priation for the pay of the Armv. 

Held further^ that the post exchange could not be reimbursed under 
the same principle nor could such indebtedness be satisfied from the 
soldier's deposits for the following reasons; viz: Section 1305, Re- 
Adsed Statutes, as amended (34 Stat., 246) declares that soldiers' de- 
posits shall be exempt from liability for their debts. This exemption 
has been held not to apply to any indebtedness to the United States 
(16 Comp. Dec, 566), but an indebtedness to a post exchange is not 
an indebtedness to the United States and the Government assumes no 
liability therefor further than to use a part of the soldier's pay, if 
there be any, to protect the exchange. Therefore, the inhibition in 
section 1305, R. S., that deposits shall be exempt from liability for 
the soldier's debts applies to any indebtedness which is not an in- 
debtedness to the United States, and as a post exchange, in the pur- 
view of this statute, is on the same footing as an individual, the sol- 
dier's deposits and interest were payable to him without diminution 
on account of such indebtedness. 

(Comp. W. W. Warwick, April 20, 1916.) 

Note. — Paragraph 1368, A. R., will be amended so as to conform 
with the above ruling. 

TRANSPORTATION: Excess baggage on change of station. 

In the shipment of an officer's baggage on change of station an auto- 
mobile was loaded in the car with household goods and professional 
books. The excess weight of the officer's baggage allowance consisted 
of 1,370 pounds of household goods and the automobile vreighing 2,000 



560 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

pounds. The household goods and books took a carload rating of 
$1 per cwt. and the rate on the automobile, which was not included in 
the carload rating, was $6 per cwt. 

Held^ that the proper method of computation Avas as set forth in 
22 Comptroller's Decisions, 195, as follows : 

" The reimbursement required to be collected from an Army officer 
for the transportation of his excess OA^er the regulation change of sta- 
tion allowance of baggage is the proportionate charge for the carload 
shipment of Avhich it forms a part^ and in addition thereto the total 
charge for articles not included in said carload rating;" and further, 
that Avhen an officer ships baggage on change of station, Avhether all 
the shipment is on a GoA^ernment bill of lading or a part is on one or 
more commercial bills of lading, and the total shipment, including an 
automobile, exceeds the alloAvance, any excess OA'er the alloAvance shall 
be considered to be in Avhole or in part, as the case may be, caused by 
the AA'eight of the automobile, and such excess will be at the cost of the 
officer. 

(Comp. W. W. Warwick, April 24, 1916.) 



NOTES OIT ADMINISTRATION OF MILITAEY JUSTICE. 

(Prepared under the direction of tlie Judiie Advocate (General of llie Army upon 
the review of records of general courts-martial trials.) 

EVIDENCE: Necessary, neglect to procure. 

A soldier Avas recently convicted of feloniously assaulting another 
by striking him on the head Avith a dangerous instrument, and sen- 
tenced to be dishonorably discharged, Avith the usual forfeitures, and 
to confinement at hard labor in a penitentiary for two years. Differ- 
ent opinions could reasonably be held as to whether or not the instru- 
ment Avas of an essentially dangerous character. It Avas proA-ecl that 
the assault upon the soldier rendered him unconscious and that he Avas 
on that account placed upon an operating table, but the record dis- 
closes no effort to procure evidence as to the extent and character of 
the injuries or as to Avhether or not an operation Avas performed. 
Evidence in these respects should have been procured, especially in 
view of the alleged dangerous character of the instrument. In the 
absence of such evidence it was incompetent for the judge advocate in 
his argument to inform the court as to the nature of the injuries 
inflicted upon the assaulted soldier. 

An officer was recently tried upon and acquitted of a charge of 
drunkenness, it being alleged in one specification that he had become 
so drunk as tO' make it necessary to place him in a hospital. The phy- 
sician who advised this course and who attended the offxer while in 
the hospital was not called as a witness nor does the record disclose 
any reason for his not being galled. The physician was obviously 
a necessary Avitness, the other Avitnesses having given no satisfactory 
evidence as to the officer's condition at the time of his remoA-al to the 
hospital nor any Avhatever as to his condition for the three days while 
therein. Failure to procure the evidence of the physici;in appeals to 
have been a serious neglect of duty on the part of both the judge 
advocate and the court. 



BULLETIN 18. 

Bulletin 1 WAE DEPARTMENT, 

No 18. J Washington, July 8, 1916. 

The following digest of opinions of the Judge Advocate General of 
the Army for the months of May and June, 1916 (two opinions 
printed in full), and of certain decisions of the Comptroller of the 
Treasury, is published for the information of the service in general. 
[2422420, A. G. O.] 

By oeder of the Secretary of War: 

H. L. SCOTT, 
Major General^ Chief of Staff. 
Official : 

H. P. McCAIN, 

21i6 Adjutant General. 



opiniojsts of the judge advocate genekal. 

June 5, 1916. 
MEMOHANDUM for The Adjutant General. 

Subject: Construction of certain provisions of the national defense 

act approved June 3, 1916. 

Upon the questions submitted by you in your memorandum of 
the 24th ultimo, I heretofore, as you know, came to certain tentative 
conclusions with which I acquainted you. In the light of your re- 
cent supplemental memorandum concerning these tentative conclu- 
sions, which I have considered with great care, I am now prepared 
to make official response to your inquiries, for the purpose of setting 
them out in the language in which they are expressed and consider- 
ing them in the order submitted : 

first. 

^'Details i7i staff departments. — The present law provides that an 
officer detailed in The Adjutant General's Department with the 
grade of major, on promotion to the grade of lieutenant colonel, 
may be redetailed in the department without regard to the detached- 
service law for other periods of four years. Does the language of 
this act, providing that when an officer is so promoted ' he may be 
permitted to serve out the period of his detail,' repeal the present 
provisions of law? " 

It is my opinion that the provision of the bill to which you refer 
relates not to the detached-service law, but solely to the provisions 
of law fixing the number of officers of the grade to which the detailed 
officer is promoted in the staff corps in which he is serving, and 
serves to increase temporarily that number so as to permit of his 
retention if desirable. 

936G8°— 17 30 561 



562 DIGEST OF OPIKIOKS OF THE JUDGE ADVOCATE GENERAL. 

SECOND. 

^'■Porto Eican Regiment of Infantry {sec. ^7).— This section of the 
bill provides for the appointment from the senior captains in regi- 
mental rank of the Porto Eican Eegiment of Infantry to fill vacan- 
cies in the grades of lieutenant colonel and major, created by this 
act. Should captains so appointed be examined under the general 
rules prescribed for advancement by promotion ? " 

My opinion is that the provision of the bill to which you refer 
does not require that the appointment shall be subject to the exam- 
ination prescribed for advancement by promotion. If it should be 
held otherwise no conceivable meaning could be assigned to the ex- 
ception in the first paragraph of section 21, wherein it is provided 
that— 

"All vacancies created by this act or occurring hereafter in com- 
missioned offices of said regiment above the grade of second lieu- 
tenant and below the grade ©f colonel shall, except as hereinafter 
provided to the contrary^ be filled by promotion according to senior- 
ity in the several grades and within the regiment, subject to the 
examination prescribed by section 3 of the act of CongTess * * *," 
etc. 

And, additionally, the word " appointments," as used in the provi- 
sion under examination, would appear to have been used in contra- 
distinction to the " promotion " mentioned and contemplated in the 
said first paragraph of said section prescribing a system of ex- 
amination. 

Relative to the clause requiring appointment to the field grades 
in this regiment to be made from " the senior captains in regimental 
rank of the Porto Rican Regiment mentioned in the act of March 4, 
1915," you ask in your supplemental memorandum the further 
questions : 

{a) "Does the clause mean the four captains at the head of the 
list, or does it describe all the captains mentioned in that act as the 
senior captains 'I " and 

{h) "Must the field officers be appointed from the four at the 
head, or may any one of them be appointed lieutenant colonel, leav- 
ing the majority to the others, attention being invited to the last 
proviso of section 21 ? " 

Responding to these questions as I understand them, it is my view 
{a) that the clause has reference to the four captains at the head of 
the list mentioned in the act of March 4, 1915. If this were not so 
and the reference were to all the captains mentioned in that act 
no meaning whatever could be assignee! to the word " senior," which, 
in view of the subject matter of the clause, is a keyword thereof. 
The word " senior " conflicts with such a general reference. If Con- 
gress had intended to refer to all of the captains mentioned in that 
act it could have done so by oinitting the word " senior " altogether; 
l)ut had it desired to go further and describe the entire class the 
adjective " permanent " used as descriptive of those officers men- 
tioned in said act very appropriately could, and probably would, 
have been used for that purpose. 

And it is my further view {h) that the four field officers must be 
appointed from the four seniors above mentioned, but that in view 
of the fact that the bill provides for " appointments," the appoint- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 563 

ments are in no respect to be governed by seniority among the four 
eligibles, and that any one of them may be appointed to any one of 
the fiehl offices without regard to his rank as to tlie other three. 

In this connection I may also say that in the absence of a more 
specific inquiry I do not now consider, as I do not perceive the rele- 
vant effect of, the last proviso, to which my attention was invited. 

THIRD. 

" Exaviination of field officers. — In section 24 it is provided ' that 
the provisions of existing law requiring examinations to determine 
fitness for promotion of ofiicers of the Army are hereby extended to 
include promotion to all grades below that of brigadier general.' It 
is further provided ' that all vacancies created or caused by the fore- 
going provisions of this section in grades above that of second lieu- 
tenant shall be filled by promotion according to law existing on and 
before the date of approval of this act, and subject to the examina- 
tions prescribed b}'^ existing law.' These two paragraphs of the bill 
are in conflict. To show the practical effect of these provisions, the 
number of lieutenant colonels of Infantry, for example, promoted 
to the grade of colonel due to the detached list is ten. The number 
of promotions from lieutenant colonel to colonel, due to the increase 
in the Infantry arm, on July 1, 1916, by seven regiments, is seven. 
The literal interpretation of the two provisions of the act would 
apparently require ten lieutenant colonels of Infantry to be pro- 
moted as now provided by law^ without examinations and eleven to 
be promoted with examination." 

The difference of language is too manifest to be disregarded or 
composed. There is no conflict between a rule which requires an 
examination in one case and not in the other. It is a matter of dif- 
ference, not conflict. Therefore there is no room for interpretation. 
Where legislative language is so plain, we do not have to seek the 
legislative reasons for the different rules, though the suggestion does 
come that Congress conceived that the detached ser\'ice list should be 
organized first and desired to avoid the delay due to the examina- 
tions ; and perhaps also that, inasmuch as senior officers for the most 
part will be promoted to the grades of lieutenant colonel and colonel 
on that list, a presumption of demonstrated competency was made in 
their favor. Upon the other side it may have been presumed that 
there would be of necessity some delay in establishing the new or- 
ganization, affording, without prejudicing the service thereby, an 
opportunity for examination for the vacancies due to the increments. 

Such was my tentative view, and upon a careful reconsideration 
I am not convinced of any error therein, notwithstanding the rea- 
sons advanced in your supplemental memorandum for a contrary 
conclusion. You say that — 

" The act specifi.cally provides for the promotions incident to the 
detached list and those due to the first increment in organizations of 
the Array to become effective at the same time, July 1, 1916; and 
this office caii not agree with the suggestion that Congress conceived 
that the detached service list should be organized first. It is sug- 
gested that that portion of the presumption be omitted from the dis- 
cussion, leaving it to the Secretary of War to determine adminis- 



564 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

tratively the officers who must be examined and who must not be 
examined under the law." 

It seems to me rather futile to admit that the law clearl}'- pre- 
scribes those who are and those who are not to be examined, only 
to have the Secretary of War disregard the distinction and substitute 
administrative will for the legal ride. That would not only put the 
Secretary in an unenviable position, without general rule or policy 
to guide him, but would transgress what is plainly prescribed. More- 
over, I think it is wrong to say that the bill specifically provides that 
the promotions incident to the detached list and those due to the 
increment shall become effective at the same time, July 1, 1916. On 
the contrary, it expressly enjoins that "on Jul}'^ 1, 1916, the line of 
the Army shall be increased by 822 extra officers * * *." And, 
again, that — ■ 

" The extra officers, together with the 200 detached officers pro- 
vided for by the act of Congress approved March 3, 1911, shall^ on 
and after July i, 1916^ constitute the Detached Officers' List." 
So, then, in legal theory at least, the promotions necessary to supply 
the officers for the Detached Officers' List must be made on July i, 
1916^ and the detachments made as soon as practicable thereafter. 
As regards the increments, hovv^ever, the language is significantly 
different. As to them, it is provided : 

" The increases in the commissioned and enlisted personnel of the 
Regular Army provided by this act shall be made in five annual 
increments * * *. Officers promoted to vacancies created or 
caused b.y the addition of the first increment shall be promoted to 
rank from July 1, 1916 * * *." 

This language does not direct that the actual promotions shall be 
made on July 1, 1916, but plainly recognizes the fact that the pro- 
motion may not be m.ade on that date, by providing, in effect, that 
whenever made the promotions shall date from July 1. If the differ- 
ence exists, as is conceded, it ought to be preserved and not destroj^ed 
by substituting for it an administrative procedure which, as I see it, 
has no basis in the bill or other law. 

FOURTH. 

" Order of filling vacancies in the grade of second lieutenant cre- 
ated hy this act [sec. 2k). — The law provides '(2) under the provi- 
sions of existing law, of enlisted men, including officers of the Philip- 
pine Scouts, * * *.' Officers of the Philippine Scouts are not en- 
listed men, and under the provisions of existing law they are ex- 
amined for appointment, as civilians." 

The term, "enlisted men, including officers of the Philippine 
Scouts," is designed to combine enlisted men and officers of the 
IMiilippine Scouts into a single, joint, eligible class, having prefer- 
ence in accordance with the act. The officers of Philippine Scouts, 
being closely associated and placed in the preferential class con- 
jointly with enlisted men, ought to have the same qualifications as 
enlisted men. This would appear to be so by the mere association of 
terms, and this view is additionally supported by the use of the^ in- 
troductory words "under the provisions of existing law," which, in a 
sense, suggests that those provisions of law which establish the 
eligibility of enlisted men should ap])ly ecjually to the officers of the 
scouts. The oflicers of scouts to be eligible by this provision should 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 565 

have, therefore, the qualifications prescribed by existing law for en- 
listed men. See act of July 30, 1892 (27 Stat., 336). It would fol- 
lov7, then, that only those officers of the scouts who are citizens of 
the United States or have declared their intention to become such 
and who possess the other prescribed qualifications are eligible to 
this class. 

I first thought that inasmuch as the substantive part of the provi- 
sion used the term " enlisted men, including officers of the Philippine 
Scouts," and the proviso used simply the term " enlisted men," omit- 
ting the words " including Philippine Scouts," Congress thus indi- 
cated a distinction between the two as to eligibility based upon serv- 
ice. But you very properly say : 

" It seems that if the officers of the scouts are to have the qualifica- 
tions prescribed by law for enlisted men, they should have the same 
length of service among other qualifications." 

Upon further consideration, I think that- is the result to be reached 
upon fair construction, notwithstanding the difficulty of the language 
indicated. Certainly the provisions establishing eligibility ought to 
be liberally construed in behalf of the beneficiaries. Furthermore, it 
could well be maintained that inasmuch as the substantive part of the 
provision established an order consisting of both enlisted men and 
officers of scouts — the word " including " being used thus cumula- 
tively — the proviso has reference to all included within the order, 
and that its sole purpose was to change the rule from the present two 
years' to one year's service without discriminating as between the 
classes constituting the order. 

FIFTH. 

'■''Transfer of officers {sec. 25). — The bill provides for the promo- 
tion or transfer without promotion of officers of one branch of the 
line of the Army to another below the grade of lieutenant colonel, 
subject to certain examinations. Do officers so transferred take their 
place in the lineal list of the arm to w^hich transferred according to 
relative rank existing at the time of transfer? " 

In my judgment the officers transferred in accordance with the pro- 
vision should take their place in the lineal list of the arm to which 
transferred according to their relative rank at the time of the trans- 
fer. I reach this conclusion principally for the reason that it is ex- 
pressly declared that the transfers provided by this section are " for 
the purpose of lessening as much as possible inequalities of promo- 
tion due to the increase in the number of officers of the line of the 
Army under the provisions of this act " ; that is to say, that in mak- 
ing these transfers the inequalities of promotion that are not brought 
about by the increases due to this act should not be admitted to con- 
sideration. On principle, and having in view the restricted purpose 
of the transfers here authorized, I can see no reason why the officers 
transferred for this purpose should have their relative rank dis- 
turbed; indeed, I do not see how their relative rank could be dis- 
turbed except upon considerations based upon inequalities due to 
increases not caused by this act. However, for the present, I can look 
at the question only as it is presented ; that is, in its large and indefi.- 
nite outlines; and it may well, be that administrative and other 
proper considerations may arise to suggest, if not require, modifica- 
tion of this general view. 



666 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

SIXTH. 

"Limits of age for erdistment {sec. 27). — The act provides 'that 
no person under the age of 18 years shall be enlisted or mustered 
into the military service of the United States without the written 
consent of his parents or guardians.' Does this provision supersede 
the present provision requiring that no person shall be enlisted be- 
tween the ages of 21 and 18 without the consent of their parents or 
guardians, or does it extend the provision? " 

The provision of existing law that has to be considered here is that 
found in section 1117, Kevised Statutes, reading as follows: 

" No pej'son under the age of twenty-one years shall be enlisted or 
mustered into the military service of the United States without the 
written consent of his parents or guardian: Provided, That such 
minor has such parents or guardian entitled to his custody and con- 
trol." 

The provision of the act, " that no person under the age of 18 years 
shall be enlisted or mustered into the military service of the United 
States without the written consent of his parents or guardian," is in 
fori vmter/a v,'ith, and must be construed with and as an amendment 
of, said section 1117, Revised Statutes, and has the effect of substitut- 
ing the age of 18 for the age of 21 years as there prescribed. The 
result must be to render unnecessary the parental consent between 
the ages of 18 and 21 years which is required by said section 1117, 
Eevised Statutes. 

SEVENTH. 

'•The organization of headquarters companies by the bill gives 
regimental adjutants service with troops in the meaning of the de- 
tached service law. Does their credit for this service begin on ap- 
proval (of the bill) by the President or on some other date? " 

As regards the application of the bill to existing regiments, it is 
self-executing and operates from the date of its approval upon the 
lieadquarters company whose elements are already in existence and 
by the bill are combined into the single organization as denomi- 
nated. Even if a minor element or so be lacking all substantial ele- 
ments of the new organization are already in existence, and such a 
slight deficiency would not prevent the immediate oi^eration of the 
act. A regimental adjutant, therefore, actually present in a duty 
status with respect to such a headquarters company is, and must be 
held to be, on duty with a company within the meaning of the de- 
tached service law. 

EIOHTH. 

^^Application of section 2.'^ tcith reference to increase in five incre- 
ments. — The Inspector General's Department, for example, is in- 
creased by one colonel. Does the bill make it mandatory that this 
increase should take place only when an entire unit is reached by the 
sum of successive previous increments, or may it legally be made at 
the diite of some previous increment: for example, at the time of the 
third increment of the case in point the Inspector (jeneral's Depart- 
ment will liave acquired 3/5. a major fraction of one colonel." 

In dealing with fractions the aclministrative rule would naturally 
be, where none other is prescribed, to regard major fractions as units, 



DIGEST OF OPIMIONS OF THE JUDGE ADVOCATE GENERAL. 567 

carrying the minor fractivons forward for future adjustment. I can 
not conceive of the slightest reason why in the example cited such 
regard should not be had for the major fraction so that, applying 
the rule, the bureau mentioned would be entitled to the increase of 
one colonel upon the third increment. Additional support for this 
view is to be gathered out of the act, Avherein it requires that the 
increments shall be one-fifth of the total. 

E, H. Crowder, 
(G4-221.4.) J\idge Advocate General. 



JuxE 19, lOlG. 

MEMORANDUM for the Chief of the War College Division of the General 
Staff. 

Subject: Interpretation of section 111 of the national defense act of 
June 3, 1916. 

1. Your memorandum of June 17 requests an opinion on certain 
questions which will be hereinafter stated in connection with the an- 
swers thereto. 

2. Question 1 : 

" Will the National Guard when drafted into the Federal service, 
as provided in sec. Ill, act approved June 3, 1916, be available for 
an olfensive campaign in Mexico? " 

Section 111 of the national defense act provides: 

" When Congress shall have authorized the use of the armed land 
forces of the United States, for any purpose reciuiring the use of 
troops in excess of those of the Eegular Army, the President may, 
under such regulations, including such physical examination, as he 
may prescribe^ draft into the military service of the United States^ 
to serve therein for the period of the war unless sooner discharged, 
an}^ or all members of the National Guard and of the National Guard 
Reserve. ■ All persons so drafted shall, from the date of their draft, 
stand discharged fro^n the r/iilifia, and shall from said date be sub- 
ject to such laws and regulations for the government of the Army 
of the United States as ma}^ be applicable to members of the Volun- 
teer Army, and shall be embodied in organizations corresponding as 
far as practicable to those of the Regular Army or shall be otherwise 
assigned as the President may direct * * *." 

The power of Congress to provide for drafting into the Army of 
the United States the citizens of the country capable of bearing arms 
was exercised during the Civil War, and its right to do so was up- 
held by the courts. The- persons so drafted, though drawn from the 
militia, were not called forth as such under the militia clauses of the 
Constitution, but were incorporated into the armies of the United 
States under the constitutional power to raise armies. {Kneedler v. 
Lane^ 45 Pa. St., 238.) Section 111 provides that the persons drafted 
pursuant to its provisions shall " stand discharged from the militia," 
thus clearly indicating that the persons so drafted shall be no longer 
regarded as militia but as a part of the Army of the United States. 
Being no longer militia their employment is not restricted to the 
purposes for which the militia as such may be employed — the execu- 
tion of the laws, suppression of insurrection, and repelling of inva- 
sion. They are subject to the orders of the President of the United 



568 DIGEST OF OPINIONS OF THE JUDC4E ADVOCATE GENEEAL. 

States, like members of tlie Regular or Volunteer Army, and may be 
used for general war purposes. The evident purpose of the au- 
thority to draft (sec. Ill) and of the oaths prescribed for officers 
(sec. 73) and for enlisted men (sec. TO) is to make the National 
Guard available for general war purposes. The question is answered 
in the affirmative. 

3. Question 2 : 

"Assuming the answer (to the preceding question) to be 'Yes,' 
if it is desired to use the existing units of the Organized Militia for 
service in Mexico, may the President elect either of the foUovving 
methods of bringing them into the service of the United States: 

"(«) Draft them into the service under the act of June 3, 1916; or 

"(6) Incorporate them into the Volunteers under the act of April 
25, 1914 ; or 

" Is the President now restricted only to (a) ? " 

It should first he observed that the President may neither draft 
members of the National Guard nor incorporate the National Guard 
into a Volunteer Army without further specific authorization by 
Congress. Section 111 of the national defense act provides that: 

'' When Congress shall have authoHze'cl the use of the armed land 
forces of the United States for any purpose requiring the use of 
troops in excess of those of the Regular Army, the President may 

* * * draft * * *." 

A proposed joint resolution designed to give the President the 
power to draft the National Guard under section 111 was submitted 
by this office to the Chief of Staff June 15, 1916. 

Section 2 of the Volunteer Army act of April 25, 1914, provides: 

" That the volunteer forces shall be raised * * * only after 
Congress shall have authorized the President to raise such a force." 

It is, therefore, evident tliat the answer to the present question de- 
pends upon the authority that Congress maj^ give in the future. It 
may authorize either of these methods for the employment of the 
National Guard, and, should it authorize one and not the other, the 
President would be limited to the methods authorized and could 
exercise no election as between the two methods. 

4. Question 3 : 

"Assuming that the President has the option of employing either 
method, can he draft part of the National Guard under the new law 
to meet a sudden emergency and use the remainder under the act of 
April 25, 1915, as a nucleus for a more deliberate volunteer organi- 
zation?" 

The above question assumes that Congress has, pursuant to section 
111 of the national defense act, authorized a draft of the National 
Guard, and has, pursuant to the Volunteer Army act of April 25, 
1914, authorized the raising of a volunteer force. Section 111 pro- 
vides that : 

" The President may * * * draft * * * ang or all mem- 
bers of the National Guard and of the National Guard Reserve." 

It is, therefore, clear that the President, in exercising the power of 
draft, is not required to draft the National Guard as a whole, but 
may draft a part thereof, in his discretion. He could, therefore, 
utilize the remainder of the National Guard as a part of a Volunteer 
Army in the manner prescribed in section 3 of the Volunteer Army 



DIGEST OF opiisrio:Nrs of the judge advocate geneeal. 569 

act. It may be hero observed, however, that enlistment in the Vol- 
nnteer Army, is a vohmtary matter, and the President can not com- 
pel the National Guard organizations to enter the same. 

E. H. Crowder, 
(58-141.) Judge Advocate General. 

AE-MY RESERVE: Furlough of enlisted men indebted to tlie United States. 

The following questions w^ere submitted : 

" Should a man who is otherwise eligible be furloughed to the 
Army Reserve at the expiration of three years' service, under the 
following conditions : 

"(«) When he is indebted to the United States for court-martial 
fines. 

"(5) When any other indebtedness of the soldier to the Govern- 
ment exceeds amounts due him." 

The act of August 24, 1912 (37 Stat., 591), providing for a seven- 
year enlistment — the first four years to be with the colors and the 
last three 3^ears on furlough and attached to the Army Reserve — 
contains the proviso that an enlisted man, at the expiration of three 
years' continuous service with his organization — 
" upon his written application, may be furloughed and transferred 
to the Army Reserve in the discretion of the Secretar^^ of War." 

Held^ that the statute, which gives the Secretary of War discre- 
tion to furlough the soldier, does not mean that the transfer must 
necessarily be effected immediately after the expiration of the three 
years' service, and that if some obstacle intervenes the furlough may 
take place as soon thereafter as practicable upon the removal of the 
obstacle. 

Answering the questions specifically : 

{a) The Secretary of War may either furlough the soldier to the 
reserve immediately after the completion of the three years' service 
with his organization, remitting the unexecuted part of the forfeit- 
ures imposed by sentence of court-martial, or may grant the sol- 
dier's application to be furloughed to the reserve to take effect imm^e- 
diately after the forfeitures have been fully executed, 

(&) Where the indebtedness of the soldier to the Government, not 
including court-martial forfeitures, exceeds the amount due him the 
grant of the soldier's application to be furloughed to the reserve 
should be deferred until sufficient pay accrues to satisfy his indebted- 
ness to the Government. 

(72-530, J. A. G., May 15, 1916.) 



CHIEE MUSICIAN: Power of regimental commander to reduce to ranks. 

The question was submitted whether a chief musician of Cavalry 
could be reduced to the ranks by the regimental commander. 

Held^ that such musicians obtain their grade, like other noncom- 
missioned officers, by enlistment as private and subsequent appoint- 
ment (act of Mar. 2, 1899, sec. 2, 30 Stat., 936), and it follows that 
they may be reduced to the ranks in like manner as other noncommis- 
sioned officers, viz, by sentence of court-martial or by order of the 
commanding officer having authoritv to appoint them. 

(6-151.1, J. A. G., May 19, 1916.)^ 



570 DIGEST OF OPINIOlsS OF THE JUDGE ADVOCATE GENERAL. 

CIVILIANS: Medical supplies for, at camps of instruction. 

The commanding ofRcer of the camp at Plattsburg, N. Y., requested 
a supply of first-aid packets and fiisst-aid instruction j)ackets for use 
of civilian members of the camp, 

Held^ that in view of the broad pov/ers of discretion conferred 
upon the Secretary of War by section 54, national defense act, in the 
matter of providing for military camps of instruction and training 
for civilians, including authority " to furnish at the expense of the 
United States uniforms, subsistence, transportation, and medical 
supplies to persons receiving instruction at such camps," the first-aid 
packets requested could pro]:>erly be furnished if regarded by the 
Surgeon General as reasonably necessary for the civilians in training 
at the camp, 

(80-131, J. A, G., June 13, 1916,) 



COMMUTATION" OF QTIARTEIIS, ETC.: Officers on temporary duty at 
training' camps. 

In section 5 of the national defense act, approved June 3, 1916, re- 
lating to the General Staff Corps, it is provided — 

" Not more than one-half of all of the officers detailed in said 
corps shall at any time be stationed, or assigned to or emploj^ed upon, 
any duty in or near the District of Columbia." 

The question was raised with reference to the relief of certain 
General Staff officers from duty in Washington, whether if they be 
directed to report at certain camps, like that at Plattsburg, N. Y., 
for temporary duty they could " retain station in Washington, not 
for duty, but for the purpose of drawing commutation of quarters, 
heat, and light." 

Ileld^ that as the law requires assignment of the officers, upon 
the approval of the act, to some other station than one in or near 
the District of Columbia they could not retain station in Washington 
for any purpose ; and that if not assigned to some other station than 
the one to which they are temporarily assigned for duty their right 
to receive commutation of quarters, heat, and light must depend on 
such temporary assignment. 

(6-210, J. A, G., June 1, 1916.) 



DENTAL CORPS: As to reorganization of, under national defense act. 

Section 10 of the national defense act, with respect to the Dental 
Corps, is as follows: 

" The President is hereby authorized to appoint and conunission, 
by and with the advice and consent of the Senate, dental surgeons, 
who are citizens of the United States between the ages of twenty-one 
and twenty-seven years, at the rate of one for each one thousand en- 
listed men of the line of the Army, Dental surgeons shall have the 
rank, pay, and allowances of first lieutenants until they have com- 
pleted eight years' service. Dental surgeons of more than eight but 
less than twenty-four years' service shall, subject to such examhia- 
tion as the President may pr-escribe, have the rank, pay, and allow- 
ances of captains. Dental surgeons of more than twenty-four years' 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 571 

service shall, subject to such examination as the President may pre- 
scribe, have the rank, pay, and allowances of major: Provided^ That 
the total number of dental surgeons with rank, pay, and allowances 
of major shall not at any time exceed fifteen: And prorided further^ 
That all laws relating to the examination of officers of the Medical 
Corps for promotion shall be applicable to dental surgeons." 

By section 127 it is provided that " nothing in this act shall be held 
or construed so as to discharge any officer from the Eegular Army 
or to deprive him of the commission which he now holds therein." 
,The provisions of the act of March 3, 1911 (36 Stat., 1051), for the 
organization of the Dental Corps are not regarded as repealed by 
the new act and both statutes should therefore be construed together 
and the former act be given force except where it appears to be modi- 
fied by the national defense act. In respect to the above provisions 
of the new act, questions v.^ere submitted and answered as follows: 

{a) May the President issue commissions as dental surgeons to 
the present acting dental surgeons who are within the designated age 
limits, such commissions to be elfective from, the date of the approval 
of the new law? Ansvjer: Yes. As the number of dental surgeons 
authorized by the new act corresponds to the total number of both 
grades u.nder the act of March 3, 1911 — that is, not to " exceed the 
prc^portion of one to each 1,000 enlisted men of the line of the 
Army '" — this evidences the purpose of Congress to supersede the 
grade of acting dental surgeons. 

(&) In issuing and making such appointments, may the President, 
in his discretion, require preliminary examination similar to that 
prescribed in section 16 as preliminary to the appointment of present 
veterinarians in the Ycterinary Corps? Ans'iver: The President may 
require an examination preliminary to the appointment of acting 
dental surgeons to the commissioned grade of dental surgeons, in 
A iew of the provisions of tlie act of March 3, 1911, which is regarded 
as still in force, declaring that : 

"Acting dental surgeons who shall serve three years in a manner 
satisfactory to the Secretary of AVar shaJZ he eligible for appoint- 
me^it as dental surgeons^ and, after passing in a satisfactory manner 
an examination which may he prescribed by the Secretary of War\ 
may be commissioned with the rank of first lieutenant in the Dental 
Corps to fill the vacancies existing therein." 

{c) May acting dental surgeons over 27 years of age be appointed 
or commissioned as dental surgeons? Answer: Yes. The act of 
March 3, 1911, provided for the eligibility of acting dental surgeons 
'"'" for appointment as dental surgeons " under the conditions pre- 
scribed therein, and prescribed the age limits for appointees as acting 
dental surgeons to be "between 21 and 27 years." It was evidently 
contemplated that they, having been appointed between the age 
limits, should lie eligible under the conditions specified for appoint- 
ment as dental surgeons, although over 27 years of age, and this pro- 
vision should be construed in connection with the present statute so 
that both will have operation — the age limits prescribed in the act 
of March 3, 1911, to apply to the eligibility of appointment of exist- 
ing acting dental surgeons as dental surgeons and the age limits 
prescribed in the national defense act to apply to all other appoint- 
ments as dental surgeons. 



572 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

(<-/) Should new commissions be issued to members of the present 
Dental Corps who hold commissions under the act of March 3, 1911, 
with the rank of first lieutenant? Answer: Having in view the fact 
that the provisions of the national defense act with regard to the 
Dental Corps are not a complete organization of that corps and do 
not provide for the repeal of the organization act of March 3, 1911, 
and that section 127 declares that nothing in that act shall deprive 
any officer " of the commission which he now holds," this question 
should be answered in the negative. 

(e) May service as contract dental surgeons under section 18 of the 
act of February 2, 1901 (31 Stat., 752-3), and service in the Dental 
Corps established by the act of March 3, 1911, whether in the civilian 
grade of acting dental surgeons or in the commissioned grade of 
dental surgeons, be counted toward the advanced rank provided in 
the new law? Answer: The act of March 3, 1911, provides that — 

" The time served by dental surgeons as acting or contract dental 
surgeons shall be reckoned in computing the mcrreased service fay 
of such as are commissioned under this act ;" while the provisions of 
the national defense act gives increase in " rank, pay, and allowances 
according to the length of service as prescribed therein." There is 
evidently a distinction between the " increased-service pay " author- 
ized by the act of March 3, 1911, and the increase in " rank, pay, and 
allowances " authorized by the new law, and it appears that while the 
service specified in this connection may be counted toward longevity 
pay, it can not be "counted toward the advanced rank provided in 
the new law," but service as dental surgeon under the act of March 3, 
1911, may be counted for the purpose of rank, pay, and allowances 
under the new law. 

(6-227.3, J. A. G., June 8, 1916.) 



ENLISTED MEN": As to furlough witliout pay. 

A noncommissioned officer of the Regular Army requested an 
indefinite furlough Avithout pay and allowances to enable him to 
accept an appointment as veterinarian in an organization of the 
National Guard in the service of the United States. 

Held., that as the pay of an enlisted man is fixed by law his agree- 
ment to waive it woid'd not be binding, and that therefore the fur- 
loudi requested for the purpose stated could not be granted. 

('72-220, J. A. G., June 13, 1916.) 



ENIilSTED MEN: Discharge by purchase and furlough to the Ai-niy Re- 
serve. 

A provision in section 29 of the national defense act approved Juno 
3, 1916, reads as follov/s: 

" When an enlisted man is discharged by purchase while m active 
service he shall be furloughed to the Regular Army Reserve, unless, 
in the discretion of the Secretary of War, he is given a final discharge 
from the Army." 

Ueld^ that this provision is applicable to all discharges by pur- 
chase issued on and after the date of the approval of the act, irre- 
spective of the time when the soldier enlisted. 

(6-310, J. A. G., June 7, 1916.) 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENEEAL. 573 

ENLISTEID MEN: Indebtedness to the United States standing from former 
eniistmient. 

The question was presented whether an enlisted man is liable for 
any indebtedness to the Government contracted during his preceding 
enlistment. 

Hdd^ that the War Department is without authority voluntarily 
to waive an indebtedness clue the United States; that the discharge 
of an enlisted man indebted to the United States does not ipso facto 
wipe out the indebtedness, and that it would be the duty of the de- 
partment to cause its collection from pay accruing to him. 

(72-610, J. A. G., Apr. 29, 1916.) 



GENERAL STAFF CORPS: Boards for recommending officers for detail to. 

Section 5 of the national defense act approved June 3, 1916, pro- 
vides, with reference to the composition of boards required by the 
act to recommend officers for detail to the General Staff Corps, that — - 

" Neither the Chief of Staff nor more than two other members of 
the General Staff Corps, nor any officer not a member of said corps, 
who shall have been stationed or employed on any duty in or near 
the District of Columbia within one j^ear prior to the date of con- 
vening of any such board, shall be detailed as a member thereof." 

Hcld^ that the service of officers on a board sitting in the District 
of Columbia which was found after the completion of its report to 
be illegal was not service in the District within the prohibition of 
the act, and that they were not therefore by reason of such service 
ineligible for service on a new board. 

(6-210, J. A. G., June 30, 1916.) 



GENERAL STAFF CORPS: Increases under national defense act. 

With reference to section 5 of the national defense act, relating to 
the General Staff Corps, questions were submitted and answered as 
follows : 

{a) Does the law with reference to the General Staff go into effect 
immediately upon the signing of the bill? Answer: The law v\dth 
reference to the General Staff goes into effect immediately upon 
signing the bill by the President, (3 Ops. Atty. Gen., 82), but, as in 
the case of other increases in the personnel of the Army, the addi- 
tional offices representing the increase in the personnel of the Gen- 
eral Staff Corps do not become effective at once but are added in five 
annual increments, the first increment being added July 1, 1916, the 
second July 1, 1917, etc. Unless conditions arise under which the 
President is authorized to organize the Army immediately, or so 
much thereof as he may deem necessary, the additional offiices rep- 
resenting the increase do not come into being until the periods stated 
from which the respective increments are to rank — that is, from July 
1 of the year in which the increment is added. 

{h) Wliat will be the authorized strength of the General Staff after 
the bill is signed? Ansioer: The authorized strength of the General 
Staff Corps, after the bill is signed, will be that provided by existing 
law, until July 1, 1916, when the first increment of the increase is 
added. 



574 DIGEST OF OPIXIONS OF THE JUDGE ADVOCATE GENERAL. 

(c) Will the law require the officers of the General Staff in excess 
of the number authorized for duty in Washington to be immediately 
relieved and assigned to duty elsewhere? A'iis-wer: Section 5 of the 
act provides that : 

" Not more than one-half of all the officers detailed in said corps 
shall at any time be stationed or assigned to or employed upon any 
duty in or near the District of Columbia, etc." 

Ileld, that this is general law, which became effective upon the 
signing of the bill. 

(d) Does the provision for the details in the General Staff create 
vacancies as provided in section 27 of the act of February 2, 1901, 
upon the signing of the bill, or does this part of the bill become 
effective July 1, due to resulting increase in the officers? Does this 
increase become effective at once, or in five increments, as provided 
for other increases? Arbswer: This provision requires that section 
27 of the act of February 2, 1901, " shall apply to each position 
A'acated hy o-ffieers heloic the grade of general oificer detailed in the 
General Stajf Corps. It creates vacancies immediately upon the 
approval of the act and brings such vacancies under the operation 
of section 27, supra^ but such vacancies can not be regarded as within 
the operation of section 24 of the act which provides that the in- 
creases in the commissioned and enlisted personnel of the Army 
shall be made in five annual increments. I think the provision 
should be construed as specifically creating vacancies in the positions 
vacated by the officers comprising the existing General Staff Corps 
and providing for their being filled under the operation of section 
27 of the act of February 2, 1901, and as to future increments to the 
General Staff Corps, vacancies upon the detail of the officers com- 
prising such increments. 

(6-210, J. A. G., May 25, 1910.) 



HEAT AITD LIGHT ALLOWANCES: Officer sick in hospital when his regi- 
ment takes station at another place. 

An officer was sick in hospital when his regiment left to take sta- 
tion at another place. He was unable to accompany the regiment 
and after remaining in the hospital for several weeks was granted 
sick leave. His family continued to occupy public quarters at the 
same station, and the question was submitted whether they were en- 
titled to draw the officer's heat and light allowances. 

Ileld^ that the orders changing the station of the officer's regiment 
were necessarily suspended as to such officer until he was able to 
comply therewith, and that he was entitled to have his heat and light 
allowance furnished his family under the circumstances stated until 
the end of his sick leave, which was witliin the limits prescribed by 
A. IX. 1035. 

(72-315, J. A. G., June 23, 1916.) 



INSPECTOR GENERAL'S DEPARTMENT: Composition of, under the na- 
tional defense act. 

Section 7 of the national defense act, approved June 8, 1916, 
provides: 

" The Inspector General's Department shall consist of one inspector 
general with the rank of brigadier general; four inspectors general 



DIGEST OF OPINIONS OF THE JUDC4E ADVOCATE GENERAL. 575 

with the rank of colonel; eight inspectors general with the rank of 
lieutenant colonel; and sixteen inspectors general with the rank of 
major." 

tleld, that this provision does not repeal the authority contained 
in the act of June 23, 1874 (18 Stat., 241) to "detail officers of the 
line, not to exceed four, to act as assistant inspectors general" with 
pay and allowances as prescribed, which has been regarded by the 
department as permanent legislation and as not having been repealed 
by provisions similar to the above section 7 contained in the acts of 
February's, 1885 (23 Stat., 297), March 2, 1899 (31 Stat., 701), and 
February 2, 1901 (31 Stat., 751). 

(6-222, J. A. G., June 3, 1916.) 

MEDICAL 0FEICEK3: Provisions of law governing examinations for pro- 
motion. 

Section 24 of tlie national defense act, approved June 3, 1916, 
declares that — 

" The provisions of existing law requiring examinations to deter- 
mine fitness for promotion of officers of the Army are hereby extended 
to include promotions to all grades below that of brigadier general." 

Under existing law there are two courses of action prescribed in 
respect to medical officers who fail to qualify for promotion for rea- 
sons other than physical disability incurred in line of duty — the act 
of April 23, 1908 (35 Stat., 67), which applies to captains and lieu- 
tenants, providing that upon their failure to pass the examination 
tlie finding of the examining board shall be passed upon by a board 
of review, and if it be concurred in by the board of review the officer 
shall be discharged with one year's pay; the other, the act of March 
3, 1909 (35 Stat., 737), which applies in terms to majors, and provides 
that if such officer fails to pass an examination for promotion, for 
reasons other than physical disability incurred in line of duty, he 
shall be suspended from promotion and reexamined after the expira- 
tion of one year, and if he then fails to pass he shall be retired v\'ith- 
out promotion. 

Held., that by the above-quoted provision of the national defense 
act the provisions of the act of March 3, 1909, sujyra, relating to ex- 
amination of majors of the Medical Corps and the action to be taken 
in case of failure to qualify for promotion, is extended to include 
promotions of officers of the Medical Corps above the grade of 
major and below the grade of brigadier general. 

(64-221.4, J. A. G., June 12, 1916.) 



NATIONAL GTJAHI): Appointment of second lieutenants — as to antedating 
rank. 

The question arose in connection with the proposed appointment of 
two enlisted men of the District of Columbia National Guard as 
second lieutenants whether they could properly be given rank from 
the date when the vacancies occurred. 

Ileld^ that the rule which applies in the case of promotions of offi- 
cers by seniority, to give them the rank as from the date the vacancy 
occurred, does not obtain in respect of appointments of second lieu- 



576 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

tenants from the ranks, the reason being that an officer promoted by 
seniorit}?^ may be deemed to exercise, and in many cases does actually 
exercise, the duties of the higher grade from the date the Aacancy 
occurred, while an officer appointed from the ranks can not exercise 
the duties of a second lieutenant until the appointment is made ; that 
therefore the custom of dating rank of a second lieutenant appointed 
from the ranks from the date the appointment is made, rather than 
from the date the vacancy occurred, would appear to be sound in 
principle and should be adhered to. 
(82-111, J. A. G., June 8, 1916.) 



NATIONAL GUAS-D: Discharges on account of dependent family. 

Section 29 of the national defense act, approved June 3, 1916, con- 
tains the following provision: 

" When by reason of death or disability of a member of the family 
of an enlisted man occurring after his enlistment members of his f am- 
iij become dependent upon him for support, he may, in the discretion 
of the Secretary of War, be discharged from the service of the United 
States or he furloughed to the Regular Army Reserve, upon due 
proof being made of such condition." 

TleJcl^ that this provision as a whole is inapplicable to the National 
Guard, in view of the alternative of furloughing the soldier " to the 
Regular Army Reserve," and that its terms indicate that it was in- 
tended to apply only to the Regular Army. 

(58-052, J. A. G., June 1, 1916.) 



NATIONAL GUARD: Status as to enlistment, under State law, while in the 
Federal service. 

A member of the National Guard was under enlistment for three 
years in active service and for five years in the reserve under the 
State law. Having been called into the Federal service, the question 
Avas submitted whether he was entitled to his discharge from the 
service of the United States at the expiration of his three-year term 
of active service for which he enlisted, or whether he would be com- 
})elled to continue in the service of the United States during his re- 
serve period. 

Held., that it is not the effect of the Federal law or proclamation 
calling the militia into service of the United States to control the term 
of service with the colors; that the effect of the local law being to 
transfer the militiaman to and invest him with the reserve status, he 
could not be kept on continuous active service on and after the ex- 
pirati^on of the three-year period for wliich he enlisted except upon 
affirmative action taken by the State authorities under the local law 
to that end. Advised, however, that a bill ponding in Congress gives 
authority to the War Department to subject members of the National 
Guard to the draft, whether they be on the active or reserve list. 

(68-100, J. A. G., June 26, 1916.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 577 

NATIONAI. GUAKB: Status of the adjutant general of a State, Territory, 
or District. 

The question was presented whether the adjutant general of a 
State, Territory, or District is an officer of the National Guard within 
the meaning of the national defense act, approved June 3, 1916, 
which provides, in section 109, for pay of certain commissioned 
officers of the National Guard, including all staff officers^ and in sec- 
tion 110- that the participation in Federal appropriations after a 
certain time shall be dependent upon the enactment of local law pro- 
viding that — 

" Staff officers, including officers of the Pay, Inspection, Subsist- 
ence, and Medical Departments, hereafter appointed shall have had 
previous military experience," etc. 

And further in section C6 that — 

" The adjutants general of the States, Territories, and the District 
of Columbia and the officers of tlie National Guard shall make such 
returns and reports to the Secretary of War, or to siich officers as he 
may designate, at such times and in such form as the Secretary of 
War may from time to time prescribe * * *." 

Held., that in providing for the organization of the National Guard 
as a Federal force Congress has recognized the duties of the several 
States, and has required or relied upon their cooperation; that the 
adjutant general is an official whom the act contemplates the State 
will provide and maintain in the performance of its duties ; and that 
it recognizes the adjutant general of a State as a State official only 
and not as an officer of the National Guard. 

(58-210, J. A. G., June 9, 1916.) 



OFFICERS: Recomm.issioning' of persons formerly in the service. 

Section 24 of the national-defense act contains the following pro- 
vision : 

" The President may recommission persons who have heretofore 
held commissions in the Regular Army and have left the service hon- 
orably, after ascertaining that they are qualified for service physi- 
cally, morally, and as to age and military fitness; such recommis' 
sioned officers shall take rank at the foot of the respective grades 
which they held at the time of their separation from the Army." 

Held., that this provision creates no new office, and that a former 
officer can only be recommisvsioned thereunder to fill an existing va- 
cancy. (6-1-^213.2, J. A. G., June 20, 1916.) Held, furtJi-er, that this 
provision relates exclusively to persons who are not a part of the 
Army and does not apply to officers on the retired list. (88-110, 
J. A. G., May 27, 1016.) Also held, that one who prior to the pas- 
sage of the national defense act had honorably resigned from the 
Medical Corps while a captain may, though he be over 30 years of 
age, be recommissionecl (that is, reappointed) in said corps under the 
above provisions of section 24 of that act, without regard to the re- 
quirement of section 10 thereof that persons hereafter commisioned 
in the Medical Corps shall be between the ages of 22 and 30 years, 
the latter provision, in respect of age at least, being applicable to 
original appointments as first lieutenants in said corps. 

(64-213.2, J. A. G., Jime 12, 1916.) 

93668°— 17 37 



578 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

OEFICEBS: E,ecomrai3sioning of persons formerly in the service. 

A former captain of the Army applied for recommission as a cap- 
tain under section 24 of the national-defense act, which provides — 

'• The President may recommission persons who have heretofore 
held commissions in the Regular Army and have left the service 
honorably, after ascertaining that they are qualified for service 
physically, morally, and as to age and military fitness ; such recom- 
missioned officers shall take rank at the foot of the respective grades 
which they held at the time of their separation from the Arm}'." 

While under a penitentiary sentence of a State court for a felony, 
and upon his application, he w^as permitted to resign. The act of 
January 19, 1911 (S6 Stat., 894), was then in force, which provided — 

*' Tluit the President be, and he is hereby, authorized to drop from 
the rolls of the Army any officer who is absent from duty three 
months without leave, or who has been absent in confinement in a 
prison or penitentiary for more than three months after final con- 
viction by a civil court of competent jurisdiction; and no officer so 
dropped shall be eligible for reappointment." 

lleld^ that the applicant, although his resignation as tendered and 
accepted was in terms unconditional, the character of the discharge 
was nevertheless governed by the actual conditions which at the time 
required his expulsion from the Army without honor, and that the 
form of his discharge did not render his leaving the service honor- 
ably W'ithin the meaning of section 24 of the national defense act. 
(28-214, J. A. G., June 22, 1916.) 



PAY AND ALLOWANCES: Hate of pay of aviation mechanician while on 
furlough. 

The act of July 18, 1914 (38 Stat., 514), relating to the aviation 
section of the Signal Corps, provides that — 

" Each aviation enlisted man * * * while holding the rating 
of aviation mechanician, shall receive an increase of fifty per centum 
in his pay," 

Ileld^ that aviation enlisted men holding the rating of aviaticm 
mechanician are entitled to the increase of pav while on furlough. 

(72-241, J. A. G., June 23, 1916.) 



PAY CLERKS: Change of status under the national defense act. 

Section 9 of the national defense act, approved June 3, 1916, 
enumerates the officers who shall comprise the Quartermaster Corps, 
and includes — 

" the pay clerks noic in active service^ trho shall hereafter hare the 
rank, pay, and allowances of a second lieutenant, and the President 
is hereby authorized to appoint and commission them, by and with 
the advice and consent of the Senate, second lieutenants in the 
Quartermaster Corps, United States Army." 

In reference to this provision questions were submitted and an- 
swered as follows: 

(a) Will the status of pay clerks change automatically in accord- 
ance with the above law; and if so, on what date? Answer: The 
legislation speaks from the date of the approval of the statute — 
June 3, 1916 — automatically giving them the rank, pay, and allow- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 579 

aiices prescribed therein as of that date. They do not, however, be- 
come commissioned officers of the Quartermaster Corps until accept- 
ance of their commissions after conlirmation by the Senate. 

(6) When their status as to rank, pay, and allowances changes, 
does such change also involve necessarily assignment to different 
duties from tliose heretofore performed by tliem? Ansioer: No. 
The legislation does not contemplate any necessary assignment to 
different duties from those heretofore performed by these i)ay clerks, 
but after becoming commissioned officers they may be charged with 
additional duties and responsibilities involved in such change in their 
status. 

(6-224, J. A. G., June 13, 1916.) 



POST EXCHANGE: Loss of funds through, negligence of post exchange 
officers. 

The field safe at a post exchange was robbed at night, .resulting in 
the loss of $127.64 in cash belonging to the exchange. The post 
exchange officer did not take personal charge of the cash accruing 
from the preceding day's business, but left it with the exchange 
steward, who locked it in the field safe " according to custom,"" to be 
turned over to the post exchange officer the next morning. 

The post exchange regulations (Par. 3, G. O. No. 176, War Dept., 
1909) provide that: 

" The exchange officer is in charge of the exchange and is responsi- 
ble for its management. * * * As custodian of funds belonging 
to enlisted men he should attend to all cash transactions in person " — 
and this regulation has been viewed by the War Department as requir- 
ing that the post exchange officer " should at tJie close of each dm/s 
business check up the steward's daily report of cash and coupons 
received, and after verification enter these data in the cash book, as 
well as all other transactions involving cash receipts and expendi- 
tures, and deposit the cash on haivd in his safe^ (Par. 1075, "A 
Guide for Inspectors General, 1911.") 

Held., that by reason of his failure to take personal charge of the 
funds at the end of the day's business and properly secure them, 
the post exchange officer became responsible for the loss. 

(72-517, J. A. G., May 25, 1916.) 



PRIVATE PROPEHTY: Disposition of ammunition taken from private 
citizens under martial law. 

In connection Avith the Colorado strike troubles in 1914 Federal 
troops, under martial law,, collected a lot of miscellaneous ammuni- 
tion from citizens. In view of the practical difficulty of assorting 
and returning such ammunition to the owners after the cessation of 
the disturbances it was proposed to sell all of it, including that for 
which claim had been made, and to deposit the proceeds in the 
Treasury of the United States. 

Ileld^ that the owners of the ammunition were entitled to its return 
to them and that it could not be sold or otherwise disposed of except 
in accordance Avith the directions of the owners; provided, however, 
that as to such portion tliereof for which no claim may be made 



580 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

within a reasonable time it should be treated as abandoned property 
in the hands of the Government and sold as such and the proceeds 
deposited in the Treasury as miscellaneous receipts. As to what 
should be considered a reasonable time, it was suggested that the local 
statute of limitations in actions for detaining goods or chattels be 
accepted and observed as a reasonable measure of time within which 
claims should be submitted. 

(18-451, J. A. G., May 24, 1916.) 



PUBLIC MONEYS: Beceipts from sale of worn-out Drison clothing, etc. 

At one of the military prisons a " prison improvement fund " was 
maintained in part by proceeds from the sale of \Torn-out clothing, 
which had been issued to prisoners, and miscellaneous junk. Section 
3618, Eevised Statutes, requires that all proceeds of sales of old ma- 
terial, condemned stores, supplies, or other public property of any 
kind shall, with certain exceptions not presently material, be de- 
posited and covered into the Treasury as miscellaneous receipts and 
not withdrawn except by authority of a subsequent appropriation. 

Held., that the old clothing and junk in question being public 
property of the United States, the proceeds from their sale are re- 
quired by Revised Statutes 3618 to be deposited in the Treasury as 
miscellaneous receipts. 

(78-110, J. A. G., May 12, 1916.) 



RETIREMENT: As to change of ofla.cer's retirement status. 

An officer requested " a change of status from ' retired on own 
application' to retirement for disability incident to service," He 
stated various facts as evidence of disability prior to his retirement, 
indicating that had a retiring board been convened he would have 
been retired for incapacity incident to the service. 

Eetirement for disability incident to service can be effected only 
through the operation of a retiring board under sections 1246-1251, 
Eevised Statutes. 

Held., that the retirement of an officer under a particular statute 
exhausts the power of the President and the record of executive 
action can not be revoked or modified so as to make retirement relate 
to another statute, even though the case were one to which more than 
one statute properly applied at the time retirement was accomplished ; 
and further, that the statutes relating to retirement apply only to 
officers on the active list; that there is no authority for the restora- 
tion of a retired officer to the active list for the purpose of being 
again retired; and that, therefore, the request in the instant case 
could not be granted. 

(88-120, J. A. G., June 28, 1916.) 



SIGNAL CORPS: Composition of, under the national defense act. 

The first ])aragraph of section 13 of the recent national defense act 
reads as follows : 

" The Signal Corps shall consist of one (^hief Signal Officer, with 
the rank of brigadier general ; three colonels ; eight lieutenant colo- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 581 

nels; ten majors; thirty captains; seventy-five first lieutenants; and 
the aviation section, wliich shall consist of one colonel ; one lieutenant 
colonel; eight majors; twenty-four captains; and one hundred and 
fourteen frst lieiiteiuvnts^ vKo shall be selected from among officers 
of the Army at large of corresponding grades or from among officers 
of the grade below, exclusive of those serving by detail in staff corps 
or departments, who are qualified as military aviators, and shall be 
detailed to serve as aviation officers for periods of four years unless 
sooner relieved ; and the provisions of section tAventy-seven of the act 
of Congress approved February second, nineteen hundred and one, 
are hereby extended to apply to said aviation officers and to vacancies 
created in any arm, corps, or department of the Army by the detail 
of said officers therefrom; but nothing in said act or in any other law 
now in force shall be held to prevent the detail or redetail at any 
time, to fill a vacancy among the aviation officers authorized by this 
act, of any officer who, during prior service as an aviation officer of 
the aviation section, shall have become proficient in militarv avia- 
tion.'; 

With reference to the above provision, questions were submitted 
and answered as follows: 

{a) To what does the word " who " following the words " one 
hundred and fourteen first lieutenants" relate — to the Signal Corps 
and aviation section combined, or only to the latter? Answer: It re- 
fers only to the aviation section. 

{h) To what class of officers does the phrase "who are qualified 
as military aviators" relate? Answer: Only to the officers selected 
from '' the grade below." 

((?) Can officers serving by detail in staff corps or departments 
wdio are not qualified as military aviators be detailed in the aviation 
section? Answer: Officers serving by detail in the staff corps or 
departments who are not qualified as military aviators may be de- 
tailed in the aviation section, provided it be in the corresyonding 
grade, but they mav not be detailed to the grade above. 

(6-228, J. A. G.,^May 27, 1916.) 



TAXATION: Chauffeur's license for Government employees. 

A chauffeur in the employ of the Federal Government in the 
Philippine Islands operating an automobile owned by the Govern- 
ment and used exclusively in the performance of the business of the 
Federal Government was called upon by the territorial authorities 
to pay a chauffeur's license tax. 

Held, that the demand was illegal, as it is definitel}^ settled that 
the instrumentalities of the Federal Government are not subject to 
taxation or the police regulations of local governments. 

(90-125, J. A. G., June 20, 1916.) 



TRANSPORTATION: Allowance to general prisoner on discharge. 

In the case of a general prisoner at the United States Disciplinary 
Barracks under sentence of dishonorable discharge, the question 
arose as to whether he was entitled to be furjiisheci transportation 



582 DIGEST OF OPHSriONS OF THE JUDGE ADVOCATE GENERAL. 

upon his discharge to the Canal Zone, tlie place of his last enlistment. 
The current Army appropriation act, approved March 4, 1915, under 
the heading " Transportation of the Army and its supplies," pro- 
vides for transportation of persons on their discharge from the 
United States Disciplinary Barracks, or from any place in which 
they have been held under a sentence of dishonorable discharge and 
confinement for more than six montlis, or from the Government 
Hospital for the Insane after transfer thereto from such barracks 
or place, "to their homes (or elsewhere as they may elect), provided 
the cost in each case shall not be greater than to the place of last 
enlistment," 

Held., that under the rule that all laws in pari mat eri a sbiouldi be 
construed together, the above provision shoidd be read in connection 
with the general law on the subject of transportation for discharged 
enlisted men, contained in the act of August 21, 1912 (37 Stat., 5T8), 
by wliich the authority is limited to furnishing transportation to 
points within the continental limits of the United States, and that 
therefore the prisoner in question Avould not be entitled upon his 
discharge to transportation to any point outside of the continental 
limits of the United States. 

(94-300, J. A. G., June 20, 1916.) 



VETEKIW ASIANS : Composition of first board of examiners under tlie 
national defense act. 

Section 16 of the national defense act relating to the appointment 
of the present veterinarians as "assistant veterinarians" or "veter- 
inarians" in the new Veterinary Corps established by that act, con- 
tains the following provision: 

" The Secretary of War shall from time to time appoint boards of 
examiners to conduct the veterinary examinations hereinbefore pre- 
scribed, each of said boards to consist of three medical officers and 
two veterinarians^ 

The question arose as to how the first veterinary examining boards 
shall be constituted prior to the issuing of commissions to any per- 
sons in the new Veterinary Corps, in view of the requirement that 
two members of such boards shall be " veterinarians." 

II eld ^ that as the law does not specifically require the veterinarian 
members of the board to have qualified under the examination pro- 
vided by the national defense act, and it would be impossible so to 
constitute the first board, the existing veterinarians in the service 
should be appointed members of the first boards convened for tlie 
required examinations. 

(6-133, J. A. G., June 6. 1916.) 



DECISIONS OF THE COMPTEOLLER OF THE TEEASTISY. 

(Dif4-ests prepared in the office (»f the Judjic Advocate (Jeneral.) 

CLAIMS: Personal property loss or damage, evidence required by account- 
ing ofiBcers. 

An officer submitted a claim under the provisions of the act of 
March 3, 1885 (23 Stat., 350), as extended by the act of March 4, 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 583 

1915 (38 Stcit., 1077), for damages to personal baggage in transit. 
The comptroller affirmed the auditor's disallowance on the ground 
of lack of sufficient evidence. 

Ileld^ that the evidence submitted to the accounting officers of the 
Treasury in support of a claim for reimbursement under the act of 
March 3, 1885, as extended, for personal baggage of an officer or en- 
listed man of the Army lost or damaged in changing station should 
consist of as complete a statement of facts as possible relative to the 
value of the property and the circumstances attending its loss or 
damage, and not merely of the conclusions of a board of officers as to 
such loss or damage, which conclusions are in no way binding on the 
accounting officers; that in the consideration of claims of this class 
the opinions or conclusions of the board are entitled to some weight, 
but the accounting officers of the Treasury are not by such opinions 
and conclusions relieved of the duty of reaching their own conclu- 
sions or in any manner bound b}' such opinions or conclusions, and 
that if possible a clear and minutely detailed description of the dam- 
age to each article for which compensation is claimed, as well as the 
market value of the article at time of crating or packing for ship- 
ment, and all facts obtainable as to when, where, and under what 
circumstances the damage sustained should be given. 

(Comp. W. W. Warwick, I^Iay 16, 1916.) 



ENLISTED MEW: Pay of privates, Medical Department, under the new 
national defense act. 

By section 10 of the national defense act it is provided that — 

" The enlisted men of the Hospital Corps who are in active serv- 
ice at the time of the approval of this act are hereby transferred to 
the corresponding grades of the Medical Department established by 
this act. 

Section 28 provides: 

" Hereafter the monthly pay of enlisted men of certain grades of 
the Army created in this act shall be as follows, namely ; * * * 
private, Medical Department, * * * fifteen dollars. Nothing 
herein contained shall operate to reduce the pay or allowances now 
authorized by law for any grade of enlisted men of the Army." 

Ueld., that by reason of the saving clause in section 28, that " noth- 
ing herein contained shall operate to reduce the pay or allowances 
now authorized by law for any grade of enlisted men of the Army," 
privates of the Medical Department transferred to that grade from 
the Medical Corps by operation of section 10 are entitled to be paid 
at the rate of $16 per 'month during the remainder of their current 
enlistment. 

Held fm'tJier, that the pay of men enlisting in the grade of pri- 
vate. Medical Department, on or after June 3, 1916, will be at the 
rate of $15 per month, and also that privates of other branches of 
the military service whose pay is $15 per month who are transferred 
to the grade of private. Medical Department, upon their own appli- 
cation or with their consent, will be paid upon the basis of the new 
rate of $15 per month. 

(Acting Comp. C. M. Foree, June 19, 1916.) 



584 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

EK'LISTED MEN: Pay of mess sergeants. 

By sections 11, 17, 18, 19, and 20 of the national defense act of 
June 3, 1016, the grade of mess sergeant for organizations of the 
Engineer Corps, the Infantry, the Cavalry, and ^or the Field and 
Coast xVrtillery of the Army, was created. Pay was fixed by section 
28, as follows: 

" Hereafter the monthly pay of enlisted men of certain grades of 
the Army created in this act shall be as f oUow s ; * * * mess ser- 
geant * * * Corps of Engineers * * * $36 ; * * * mess ser- 
geant. Infantry, Cavalry, and Artillery, * * * $30; * * * 
Nothing herein contained shall operate to reduce the pay or allow- 
ances now authorized by law for any grade of enlisted men of the 
Army." 

Heretofore enlisted men have served as mess sergeants by detail 
under paragraph 1346, A. R., 1913, and were paid extra compensa- 
tion under the act of May 11, 1908 (35 Stat., 159), wdiich provided 
that mess sergeants shall receive $6 per month in addition to their 
pay. 

Held,, that the act of June 3, 1916, created the grade of niess ser- 
geant for certain arms of the service only ; that for other arms of the 
service mess sergeants must be provided as heretofore by detail ; that 
the men holding the grade of mess sergeant under the new act are 
entitled only to the pay established for that gi'ade, namely, $36 or 
$30 per month, according to the arm of the service in which serving, 
and that men detailed as mess sergeants in the arms of the service 
for which the grade of mess sergeant is not provided are entitled 
to the pay of the grades actually held by them plus $6 per month, as 
provided in the act of May 11, 1908; and further, in answer to 
specific questions, 

Held, that— 

(«) The base or initial pay of the grade of mess sergeant, Corps 
of Engineers, is $36 per month, and no more. 

{b) The base or initial pay of the grade of mess sergeant in the 
Infantry, Cavalr}'^, and Artillery is $30 per month, and no more. 

(c) The continuous-service pay of persons appointed to the grade 
of mess sergeant should be computed on the basis of the rates men- 
tioned in tlie answers to questions {a) and (5). 

{d) The arms of the service for which the act of June 3, 1916, 
makes provision for mess sergeants are not entitled to have addi- 
tional mess sergeants assigned or detailed thereto. Such provision 
is complete as to such organizations. 

(Com.p. W. W. Warwick, June 30, 1916.) 



LEAVE OF ABSENCE : Officers and employees of the Government who are 
members of the National Guard called into the service of the United 
States, 

Section 80 of the national defense act, approved June 3, 1916, reads 
as follows — 

^^ Leaves of ahsence for eertcdn Government emq>loyees. — All officers, 
and employees of the United States and of the District of Columbia 
who shall be members of the National Guard shall be entitled to 
leave of absence from their respective duties, without loss of pay, 
time, or efficiency rating, on all days during which they shall be 



DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 585 

engaged in field or coast-defense training ordered or authorized 
under the provisions of this act." 

With reference to this provision, the following questions were 
submitted : 

(1) "Can employees of the department who are members of the 
National Guard and have been called out by order of the President, 
be paid their salaries as employees of the department for such time 
as they remain in camp and are not drafted into the active military 
service of the Government? " 

(2) " Can any such employees be borne on the rolls of the depart- 
ment in a pay status after they have been drafted into active military 
service of the Government? " 

(3) " Can employees, w^here they are paid from lump fund appro- 
priations, be carried on the rolls of the Treasury Department in a 
non-pay status after they have been drafted into the active military 
service of the Government ? " 

(4) " Does the provision of this section take effect on date of its 
approval or on July 1, 1916? " 

Ilelcl^ in answer to questions (1) and (2), that the leave author- 
ized in favor of officers and emploj^ees who are members of the 
National Guard being only for the time while they are " engaged in 
field or coast-defense training" ordered or authorized under the 
provisions of that act, it is not available to such officers and em- 
ployees when called into the service of the. United States by the 
President. Advised, how^ever, that while the employees referred to 
are not entitled to military leave under the said provision, there 
appears to be no reason why they should not be paid their regular 
salaries as officers or employees for such period prior to their actual 
muster into the service as would be covered by annual leave granted 
to them in accordance with law, and that even if actually mustered 
into the service of the United States, enlhted men may continue to 
receive pay as officers or employees until the expiration of the leave 
granted, provided the combined pay of the military and civil posi- 
tions does not exceed $2,000 per annum. If it does exceed $2,000, 
payment of any compensation as a civilian officer or employee would 
be prohibited under the provisions of section 6 of the act of May 10, 
1916 (Pub. No. 73). This applies to men called forth under the pro- 
visions of section 4 of the act of January 21, 1903, as amended, as 
well as those drafted into the military service under the ]3rovisions 
of section 111 of the act of June 3, 1916. 

Ileld^ that question (3) being purely administrative and not in- 
volving any payment to be made, the comptroller was without juris- 
diction to decide it. 

Ileld^ as to question (4), that the section referred to became ef- 
fective June 3, 1916, the date of approval. 

(Comp. W. W. Warwick, June 28, 1916.) 



PAY AND ALLOV/ANCES: Foreign service pay for trips into Mexico. 

In the case of certain officers and enlisted men connected with the 
punitive expedition into Mexico who had temporary station at Co- 
lumbus, N. Mex., and made trips into Mexico, lieJd^ that they were en- 
titled to foreign service pay for the time served in Mexico on the trips. 

(Comp. W. W. Warwick, June 26, 1916.) 



586 DIOEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 
PAY AND ALLOWANCES: Persons drawing two salaries. 

By section 6 of the legislative, etc., appropriation act of May 10, 
1916, it is provided as follows: 

" That unless otherwise specially authorized by law no money ap- 
propriated by this or any other act shall be available for payment 
to any person receiving more than one salary when the combined 
amount of said salaries exceeds the sum of $2,000 per annum, but 
this shall not apply to retired officers of the Army, Navy, or Marine 
Corps whenever they may be appointed or elected to public office or 
whenever the President shall appoint them to office by and with the 
advice and consent of the Senate or to officers and enlisted men of the 
Organized Militia and Naval Militia in the several States, Terri- 
tories, and the District of Columbia." 

Held, that in the case of a retired enlisted man of the Army his 
pay as such is not salary within the meaning of the above statute, 
alsx) that a pension is not a salary within its inhibition. 

(Comp. W. W. Warwick, June 3, 1916.) 



TRANSPORTATION: Apportionment of charg-es in shipment of excess bag- 
gage. 

In the shipment of an officer's change of station efFects, there was 
included in the car with the household goods one of the officer's 
mounts shipped at public expense. The baggage weighed 6,007 
pounds. The horse w^ghed 1,100 pounds, but was charged for on 
the basis of 5,000 pounds as provided by the official classification. 
The rate on the basis of less than carload was 35 cents per hundred- 
weight for the 11,007 pounds charged for. The carload rate being 
30 cents per hundredweight for a minim.um of 12,000 pounds, the 
latter was accepted as being in the Government's favor and there 
being chargeable against the officer the cost on 3,509 pounds of excess 
baggage, the question was presented as to the proper basis for deter- 
mining the apportionment. 

IleM, that " the question for determination is whether in appor- 
ti(»ning the cost of the shipment between the officer and the Govern- 
ment the weight of the horse is to be considered as 5,000 pounds con- 
structive weight or 1,100 pounds actual weight. It must be borne in 
mind that 5,000 pounds is not the weight of the horse, but is merely 
stated as the basis for determining the charge for its transportation 
Avhen the less-than-carload rate is applicable. _ This constructive basis 
for determining the charge for transportation does not affect the 
actual weight, which is clearly distinguishable therefrom. The 
Aveight of the horse being 1,100 pounds and the other portion of the 
shipment 6,007 pouncls, makes a total weight of 7,107 pounds, for 
which the cost is on the basis of a carload of 12,000 pounds as the 
nuiximum charge for the shipment, which would cost more if less- 
than-carload rates were applied. The officer should pay such propor- 
tion of this $36 as his excess of 3,509 pounds boars to the total weight 
of 7,107 pounds, for which the said charge is made." 
(Comp. W. W. Warwick, May 19, 1916.) 



TRAVEL ALLOWANCES: Enlisted men on discharge. 

Section 126 of the national defense act, approved June 3, 1916, 
provides : 



DIGEST OF OPmiONS OF THE JUDGE ADVOCATE GENERAL. 587 

" On and after Jiilj^ first, nineteen hundred and sixteen, an enlisted 
man Avhen discharged from the service, except by way of punishment 
for an offense, shall receive S^ cents per mile from the place of his 
discharge to the place of his acceptance for enlistment, enrollment, 
or original muster into the service, at his option: Provided, That for 
sea travel on discharge transportation and subsistence only shall be 
furnished to enlisted men." 

By section 128 it is provided " that all laws or parts of laAvs in so 
far as they are inconsistent with this act are hereby repealed." 

In view of these provisions of the national defense act the follow- 
ing questions were submitted for decision: 

(a) Will the travel pay of enlisted men on discharge on and after 
Julv 1, 1916, be governed by the acts of June 12, 1906, and June 3, 
1916? 

(h) Does the act of June 3, 1916, confer upon an eidisted man on 
discharge a right to travel pay to a place other than the place of his 
acceptance for enlistment? 

Held, that the act of August 24, 1912 (37 Stat., 575), providing 
for transportation and subsistence in kind for enlisted men on their 
discharge, or, in lieu thereof, 2 cents a mile, at the election of the 
soldier, was repealed by the act of June 3, 1916, and that on and 
after July 1, 1916, the payment of travel pay to enlisted men of the 
Armv on discharge will be governed by the acts of June 12, 1906 
(31 Stat., 247), and June 3, 1916. The act of June 12, 1906, referred 
to provides: 

" For the purpose of determining allowances for all travel under 
orders, or for officers and enlisted men on discharge, travel in the 
Philippine Archi-pelago, the Hawaiian Archipelago, the home waters 
of the United States, and between the United States and Alaska shall 
not be regarded as sea travel and shall be paid for at rates established 
by law for land travel within the boundaries of the ITnited States." 

Question [a) accordingly ansvrered in the affirmative. 

Held, as to question (h) that the language "at his option" in sec- 
tion 126 of the national defense act has operation only with reference 
to the preceding words " enrollment " or " original muster into the 
service"; that as these terms are not properly applicable to enlisted 
men of the Kegular Army, such enlisted men on discharge are en- 
titled to travel allowances only to the place of their acceptance for 
enlistment, i. e., the place of initial acceptance, it being the purpose 
of the act to return a man to the place from which he was taken by 
the Government. As to enlisted men of volunteer or militia organiza- 
tions to which the terms " enrollment " or " muster into the service " 
may apply, they may exercise an option. If a man enters the military 
service as a part of a recognized organization which has been enrolled 
for the purpose of becoming a part of the Army, and such organiza- 
tion is mustered into the service at a different place from that where 
the members Avere enrolled, he may, upon discharge or muster out, be 
alloAved travel to the place of his enrollment or to the place of his 
muster in, as he may elect, or, in the language of the statute "at his 
option." Answering question (h) specifically, an enlisted man of the 
Eegular Army is entitled to travel pay only to the place of his accept- 
ance for enlistment. 

(Comp. W. W. Warwick, June 26, 1916.) 



BULLETIN 28. 

Bulletin 1 • WAR DEPARTMENT, 

No. 28. J Washington, August 18, 1916. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of July, 191G (one opinion printed in 
full), and of certain decisions of the Comptroller of the Treasury 
and of a court, is published for the information of the service in 
general. 

[2255370 I^A. G. O.] 

By order of the Secretary of War : 

H. L. SCOTT, 

Major General, Chief of Staff. 
Official : 

H. P. McCAIN, 

The Adjutant Gcixcral. 



OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

July 29, 1916. 
MEMORANDUM for the Secretary of War. 

Subject: Status of members of the National Guard under the call 
for Federal service. 

1. The views of this office are desired with respect to the questions 
raised in the accompanying letter by the Hon. J. Hampton Moore, 
M. C., wdth respect to the status of members of the National Guard 
now in the service of the United States. The questions submitted by 
Mr. Moore are as follows: 

(«) "Is the National Guard, as at present mustered in by officers 
of the Regular Army under the oath required by the national defense 
act (the Hay bill), in the jurisdiction of the States, subject to orders 
from the governors, or is it now^ a part of the Regular Army of the 
United States in the pay of the United States Government and sub- 
ject to the Regular Army term of service? An answer to this in- 
quiry might include the further question as to the pensionable status 
of members of the National Guard as now sworn in for service along 
the Mexican border. 

{!)) "If the National Guard as at present in service along the 
Mexican border has not been drafted under existing law, including 
the Dick Act and the national defense act, it is availal)le for service 
under the Constitution beyond the borders of the United States? An 
answer to this question may include the statement of the effect of the 
resolution of Congress declaring an emergency to exist." 

2. In answering these questions the term " Organized Militia " 
will be applied to the militia organized under the act of January 
21, 1903, known as the "Dick bill" (32 Stat., 775), as amended 
and the term " National Guard " will be applied to the members of 

588 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 589 

the Organized Militia who have qualified under the national defense 
act of June 3, 1916, by subscribing- the oath and enlistment contract 
as provided in sections 70 and 73 of that act. 

3. The Organized Militia of the States of Arizona, New Mexico, 
and Texas have been mustered into the service under the call of May 
9, 1916, and the Organized Militia and National Guard of the other 
States are in the service under the call issued by the President June 
18, 1916, both calls being for the purpose of protecting the United 
States against aggression from Mexico. 

4. The questions submitted will be answered first with respect to 
the Organized Militia of the States of Arizona, New Mexico, and 
Texas. These were mustered into the service of the United States 
under section 7 of the Dick bill, the officers and enlisted men taking 
in connection with the said muster the oath prescribed by the muster- 
in regulations promulgated under that law. Their status is that of 
militia called into the service of the United States for one of the 
purposes specified in the Constitution, that is, to protect the United 
States against invasion. While in such service, they are subject to 
the laws and regulations governing the Regular Army, so far as 
applicable to their temporary status, and are subject only to the 
orders of the President, They are not, while in such service, under 
the jurisdiction of the States, nor are they subject to the orders of 
the governors, whose authority over them for the time being is sus- 
pended, except only with respect to the appointment of officers. They 
are not a part of the Regular Army of the United States, nor are 
they subject to the Regular Army term of service. They are in the 
service as militia called forth to meet the exigency for which the call 
Avas issued. While in the service they are, of course, in the pay of 
the United States Government and are entitled to the same pay and 
allowances as the regular troops. With regard to their pensionable 
status, section 22 of the Dick bill gives them the benefit of the pen- 
sion laws for any disability incurred in the service and, in case of 
death, confers on the widow or children of the deceased all the bene- 
fits of such pension laws. Under the decision of the comptroller of 
July 20, 1916, the Avidow or beneficiary of a member of the Organized 
Militia dying in the service, in line of duty and not as the result of 
his own misconduct, is entitled to the six months' gratuity pay, the 
sam.e as in the case of officers or soldiers of the Regular Armj^ 

5. Answering the questions submitted with respect to the Organ- 
ized Militia and National Guard who are in the service under" the 
call of June 18, 1916, it should be observed that shortly after the 
passage of the national defense act of June 3, 1916, the Organized 
Militia of the several States began to transform themselves into the 
National Guard of the new national defense act. The call of June 
18, 1916, found this process of transformation going on,' and it was 
necessary, therefore, for that call to embrace both the Organized 
Militia and the National Guard, if it were to be effective to call into 
the service of the United States all of the militia forces, and it was 
so drafted. 

6. AVith respect to those organizations of the Organized Militia 
that had transformed themselves, prior to June 18, 1916, into the 
National Guard under said act, no muster in Avas necessary, as it 
was the effect of the call to place them in the service of the United 
States from the date they were required by the terms of the call to 



590 DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 

respond thereto (sec. 101, national defense act). The muster-in rolls 
of the several organizations are on file in the War Department, but 
this office has not had an opportunity to give them any detailed ex- 
amination. It is understood, however, that pursuant to instructions 
the members of the Organized Militia who had not qualified under 
the national defense act were required to be mustered in, taking the 
prescribed muster-in oath; but as to those who had so qualified, their 
names were entered upon the muster rolls with a notation to the effect 
that they had already taken the oath prescribed in sections 70 and T3 
of the national defense act. 

7. There are, therefore, in the service of the United States under 
the call of June 18, 1016, two classes of militia — one the militia or- 
ganized mider the Dick bill and the other the National Guard as 
organized under the national defense act. With respect to those who 
have not qualified under the national defense act, their status is 
identical with that of the Organized Militia of the States of Arizona, 
New Mexico, and Texas, which is discussed above. The status of 
those who have qualified under the national defense act is that of 
National Guard " called as such into the service of the United States " 
(sec. 101, national defense act), and they are, while in such service, 
" subject to the laws and regulations governing the Eegular Army," 
so far as applicable to their temporary status, and are subject only 
to the orders of the President. They are not, while in such service, 
under the judisdiction of the State, nor are they subject to the 
orders of the governor, whose authority over them for the time 
being is suspended, except only with respect to the appointment 
of officers within the classes specified in the national defense act 
of June 3, 1916. They are not a part of the Regular Anny of the 
United States, nor are they subject to the Regular Army term of serv- 
ice. Like the Organized Militia, whose status is discussed above, 
their status in the service under the call is that of militia called into 
the service of the United States for one of the purposes specified in 
the Constitution — that is, to protect the United States against in- 
vasion. They are, of course, in the pay of the United States Gov- 
ernment and are entitled while in the service to the same pay and 
allowances as regular troops. In fact, both classes of troops, while 
in the service of the United States, are subject to the laws and regu- 
lations governing the Regular Army, so far as applicable to their 
temporary status, and subject only to the orders of the President. 
Neither class of troops, while in such service, is under the jurisdiction 
of a State or subject to the orders of a governor, whose only authority 
with respect to them is, as above stated, to appoint officers to any 
vacancies which may occur. Both classes of the militia are entitled 
to pensions for disabilities incurred during their period of service, 
under the same conditions as are regular troops; and their bene- 
ficiaries are also entitled, under the decision of the comptroller of 
July 20, 1916. to the six months' gratuity pay in the case of their 
death while in the service from wounds or disease " not the result of 
their own misconduct." 

8. Much of the misconception that has arisen regarding the status 
of the National Guard in service under the call of June 18, 1916, 
a])pears to rest on the as-sumption that it is the effect of the new 
oath and enlistment contract, and the call of that date, to make 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GEXEEAL. 591 

the National Guard available for any service for which the Eegular 
Army may be used durinfr the period of service under the call. But 
that Congress did not so intend is evident from the fact that the act 
of June 3, 1916, contains a provision (sec. 101) applicable to the Na- 
tional Guard " when called as such into the service of the United 
States" and a distinct provision (sec. Ill) for drafting them into the 
Federal service, applicable only ^ when Congi-ess shall have author- 
ized the use of the armed land' forces of the United States, for any 
purpose requiring the use of troops in excess of those of the Eegular 
Army." As to persons so drafted, it is distinctly provided that they 
"shall, from the date of their draft, stand discharged from the 
militia, and shall from said date be subject to such laws -and regula- 
tions for the government of the Army of the I'^nited States as may 
be applicaljle to members of the Volunteer Arm}' * * * 75 j^ -g 
clear, I think, that the national defense act contemplates that the 
National Guard shall be available for service, either as National \ 
Guard called into the service of the United States as such for the \ 
three constitutional purposes or, when specially authorized by Con- \\ 
gress, as a national force supplementing the Regular Amiy and avail- i/ 
able for any service for which regular troops maj^ be used. In othe^ \ 
words, the national defense act gives the Government the right, in \ 
return for the expenditure for pay, training, and equipment of the 7. 
National Guard, to draft them into the Federal service to supple- 
ment the Regular Army, but this right can be exercised only when 
Congress shall have authorized its exercise, as has been done in the 
joint resolution of July 1, 1916. 

9. With regard to tlie effect of the declaration in the joint resolu- 
tion of July i, 1916, that an emergency exists, I think there can be 
no question but that this declaration serves as the reason for con- 
ferring the authority to make the draft and also as a limitation upon 
the authority with regard to the term of servvice under the draft. 
It is provided therein that the draft shall be "/cr the period of the 
emergency^ not exceeding three years, unless sooner discharged." 
The resolution confers a discretion on the President to issue the draft 
or not, as the exigencies of the situation may require. 

E. H. Crowder, 
Judge Advocate General. 

AVIATION SEE- VICE: Increase in personnel. 

Anticipating a possible shortage of flyers to meet the emergency on 
the Mexican border, the Chief Signal Officer submitted the following 
questions, to which are subjoined the answers given: 

{a) May qualified fliers from the militia or from civil life be 
appointed and commissioned reserve officers and assigned as reserve 
officers to the aviation section of the Signal Corps? Ansicer: Sec- 
tion 37 of the national defense act authorizes the creation of an 
Officers" Reserve Corps to include, inter alia^ " sections corresponding 
to the various arms, staff corps, and departments of the Regular 
Army." Qualified fliers from the m.ilitia or from civil life may be 
appointed and commissioned as reserve officers in the Officers' Re- 
serve Corps, and in time of " actual or threatened hostilities " they 
may be assigned to duty Avith the aviation section of the Signal 
Corps, as authorized by section 38 of that act. 



592 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

(h) What number of reserve officers may be assigned to the avia- 
tion section of the Signal Corps on July 1? Answer: The number 
depends on the number of divisions organized and on the number 
of regular officers and aviators available for duty Avith the aero 
squadrons authorized for the divisions which may be organized. 

{(■) May fliers be appointed "aviators" and be subsequently ap- 
pointed and commissioned in the Officers' Eeserve Corps'? Answer: 
Section 13 of the national defense act provides for the appointment 
and commissioning of civilians to the grade of aviator created by 
said act, with the base pay of $150 per month and with the allow- 
ances " of a master signal electrician and the same percentage of 
increase in pay for length of service as is allowed to a master signal 
electrician." The statute broadly authorizes the commissioning of 
the number required to make up the shortage of Army officers to fill 
the places allowed by law for the aviation section, such aviators 
being given an indefinite tenure, subject onl}^ to the provision that 
" whenever any aviator shall have become unsatisfactory he shall be 
discharged from the Army as such aviator." 

I see no reason why an aviator may not resign and be subsequently 
appointed and commissioned in the Officers' Reserve Corps; but I 
see no object to be accomplished in commissioning an aviator, while 
in the service as such, as an officer in the Officers' Reserve Corps. 

{d) May militia officers who are qualified fliers be detached from 
their commands and assigned to flying duty in the aviation^ section 
of the Signal Corps? Ansiver: When the militia are called into the 
service of the United States, no reason is perceived why qualified 
fliers of the same may not be detached from their commands and 
assigned to flying duty in the aviation section of the Signal Corps in 
the same manner as may other officers in the service of the United 
States, but subject to any limitations on their use incident to their 
status as Organized Militia. 

(6-301, J.^A. G., July 10, 1916.) 



DESERTERS: Payment of reward for arrest of deserting militiamen or 
national guardsmen. 

The question was presented whether a reward is payable for arrest 
of deserting members of the Organized Militia or National Guard 
inducted into the service of the United States. The Army appropri- 
ation act, in the item for incidental expenses, provides : 

"For the apprehension, securing, and delivering of deserters, 
including escaped military prisoners, and the expense incident to 
their pm-suit, and no greater sum than $50 for each deserter or 
escaped military prisoner shall, in the discretion of the Secretary 
of War, be paid to any civil officer or citizen for such service and 
expenses." 

Held, that none of the provisions of law or regulations on the 
subject makes any distinction between deserters from the Regular 
Army and others, and that as the members of the National Guard 
and Organized Militia, while in the service of the TTnited States, are 
subject to the same laws and regulations as regular troops, it follows 
that the payment of rewards for their arrest as deserters is au- 
thorized. 

(26-200, J. A. G., July 31, 1916.) 



DIGEST OF OPII^ION-S OF THE JUDGE ADVOCATE GENEEAL. 593 

ENLISTED MEN: Continuous-service pay. 

An enlisted man of the Regular Army whose discharge was author- 
ized to enable him to accept a commission in the National Guard, in 
the service of the United States, inquired whether he would lose his 
continuous-service pay status by accepting such commission. The 
act of May 11, 1908 (35 Stat., 105), provides for continuous-service 
pay to those reenlisting within three months after their honorable 
discharge. 

Ileld^ that there exists no exception to the requiremxcnt that reen- 
listment must occur within three months from the soldier's discharge 
to entitle him to continuous-service pay. 

(34-225, J. A. G., July 3, 1916.) 



ENLISTED MEN: Detail of noncomiTiissicned o£B.cers for service in Na- 
tional Guard. 

Section 36 of the national defense act authorizes the Secretary of 
War to detail " sergeants " for the purpose of " assisting in the in- 
struction of the personnel and care of property in the hands of the 
National Guard.^' 

Helcl^ that the purpose of the act being to provide for the detail of 
competent men for the purposes mentioned, the word " sergeants " 
should be construed in its broader sense so as to include the detail 
of sergeants, first class, in the few cases where, on account of the 
technical knowledge required, the instruction of the Signal Corps of 
the National Guard can be properly given only by such sergeants. 

(6-156, J. A, G., July 18, 1910.) 



ENLISTED MEN: Discharge because of dependent family. 

Section 29 of the national defense act contains the following pro- 
vision : 

" That when by reason of death or disability of a member of the 
family of an enlisted man occurring after his enlistment member's 
of his fam.ily become dependent upon him for support, he may, in 
the discretion of the Secretary of War, be discharged from the service 
of the United States or be furloughed to the Regular Army Reserve 
upon due proof being made of such condition." 

Ileld^ that this provision repeals section 30 of the act of February 
2, 1901 (31 Stat., 756), which authorized the discharge only upon the 
death of a dependent parent and after one year's service. 

(6-310, J. A. G., July 28, 1916.) 



ENLISTED MEN: Rates of pay. 

Section 19 of the national defense act of June 3, 1916, in the part 
prescribing the composition of a gun or howitzer battery of Field 
Artillery, contains the following provision : 

" When no enlisted men of the Quartermaster Corps are attached 
for such positions there shall be added to each battery of mountain 
93G68°— 17 38 



594 DIGEST OF OPINIOMS OF THE JUDGE ADVOCATE GENERAL. 

artillery one packmaster (sergeant, fi}\st class), one assistant pack- 
master (sergeant), and one cargador (corporal)." 

No rate of pay is prescribed by statute for a sergeant, first class, 
of Field Artillery, but the three grades of enlisted men mentioned, 
yiz, sergeant, first class, sergeant, and corporal, are provided for 
in the Quartermaster Corps at rates of $-15, $36, and $24, respec- 
tively. 

Uelcl^ that it is clearly the intent of the statute that said rates in 
the Quartermaster Corps shall apply to enlisted men occupjang the 
positions of packmaster, assistant packraaster, and cargador. respec- 
tively, whether the men are assigned from the Quartermaster Corps 
or are " added "as provided by the act. 

(72-200, J. A. G., July 8, 1916.) 



EXAMI!N"ATIOXS: Matters to be considered in determining' general efFi- 
ciency of officer. 

Ileld^ that an examining board in determining the general effi- 
ciency of an officer for promotion may consider ( 1 ) the use the officer 
has made of his opportunities, (2) his ability to apply practically his 
professional laiowledge, (3) his general trustworthiness {^nd ability 
in the performance of his official duties, and (4) his ability to com- 
mand troops or control men. 

(64-221.3, J. A. G., July 12, 1916.) 



GENERAL STAEF CORPS : Number of officers authorized to be on duty in 
District of Columbia. 

Section T) of the national defense act relating to the General Staff 
Corps specifies the grades and number of officers thereof, all of whom 
shall be detailed therein for periods of four years, unless sooner 
relieved, and further, that "not more than one-half of all of the 
officers detailed in said corps shall at any time be stationed or as- 
signed to or employed upon any duty in or near the District of 
Columbia." 

Fleld^ that general off.cers detailed to the General Staff Corps 
must be regarded as part of the one-half of the officers of the corps 
permitted to be assigned to or employed on duty in or near the Dis- 
trict of Columbia. 

(6-211, J. A. G., July 25, 1916.) 



NATIONAL GUARD: Detail of officers of, to duty with the Regular Army. 

Tleldi that there is no legal objection to detaching officers or organi- 
zations of the National Guard and Organized Militia inducted into 
the military service of the United States under the calls of May 9 
and June 18, 1916, and detailing them to duty with corresponding 
organizations of the Regular Army. 

^58-251, J. A. G., July 20, 1916.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 595 

NATIONAL GUAHD: Discharge of members by State authorities after the 
President's call. 

After the receipt of the President's order of June 18, 1916, calling 
the Organized Militia into the service of the United States, dis- 
charges were issued to certain enlisted men by order of the governor 
of a State upon personal pleas by relatives and friends of the enlisted 
men. Other discharges were issued by organization commanders to 
men who were considered undesirable or physically unfit for the 
service. 

Fleldy that after the receipt by a governor of the President's call 
he was unauthorized to order the discharge of enlisted men, and that 
the Federal authority alone can relieve the men from their obliga- 
tion. 

(58-052, J. A. G., July 17, 1916.) 



NATIONAL GUAUD: Discharge of oScers and enlisted men for physical 
disability. 

Section 115 of the national defense act provides that: 

" Every officer and enlisted man of the National Guard who shall 
be called into the service Of the United States as such shall be ex- 
amined as to his physical fitness under such regulations as the Presi- 
dent may prescribe without further commission or enlistment." 

In connection with the induction of the National Guard into the 
service of the United States under the President's call of June 18, 
1916, the question arose whether those officers and enlisted men 
found physically unfit for service should be discharged from both 
the Federal service and the National Guard. 

Held as follows: Under the national defense act the National 
Guard occupies a dual status, i. e., as a national force and also as a 
State force, and no officer or enlisted man can remain a member un- 
less he is physically qualified for Federal service. Congress has pre- 
scribed the qualifications for commission or enlistment in the Na- 
tional Guard and has asserted, on behalf of the United States, the 
authority to prescribe the conditions under which enlistments and 
discharges in and from the National Guard shall be made. Section 
72 of the national defense act restricts discharges in time of peace, 
so that no discharge may be given in time of peace " prior to the ex- 
piration of terms of enlistment " except " under such regulations as 
the President may prescrlhe^'' Section 115 provides for a medical 
examination to determine the physical condition of the officers and 
enlisted men when called into the service of the United States, and 
it appears clear that an officer or enlisted man, upon being examined 
as required in that section and found physically defective, must be 
discharged not only from the operation of the call into the Federal 
service, but also from the National Guard. In the case of an en- 
listed man the discharge, when ordered, should be effected by a dis- 
charge in writing, signed by the proper National Guard commander, 
under the provisions of section 72 of the national defense act, and 
should be so worded as to show that it is a discharge not only from 
the operation of the Federal call, but also from the National Guard. 
With respect to a commissioned officer, a discharge should be ordered 
by the President and should purport to be a discharge from the 
National Guard. 

(28-210, J. A. G., July 18, 1916.) 



596 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

JSTATIONAL GXIASD: Inspectors of small-arms practice. 

An opinion was requested respecting the status of inspectors of 
small-arms practice under the national defense act. Section 3 of the 
militia act of January 21, 1903, as amended May 27, 1908 (35 Stat., 
899), providing for the organization, armament, and discipline of 
the Organized Militia in conformity with that prescribed for the 
Regular xlrmy, contained a proviso authorizing inspectors of small- 
arms practice for divisions, brigades, regiments, etc. Section 60 of 
the national defense act reenacts the requirements as to conformity 
to the organization prescribed for the Regular Army, omitting the 
said proviso, in the following language : 

" Except as otherwise specifi^cally frovided lierein^ the organization 
of the National Guard, including the composition of all units thereof, 
shall be tlie same as that which is or may hereafter be prescribed 
for the Regular Army, subject in time of peace to such general ex- 
ceptions as may be authorized by the Secretary of War." 

rield^ in view of the omission of the proviso and the express lan- 
guage that the requirements as to conformity shall apply " except 
as otherwise sj)ecifically provided herein," that no inspector of small-, 
arms practice is authorized for the National Guard, there being no 
specific authority for such inspectors elsewhere in the national de- 
fense act. 

(58-210, J. A. G., July 12, 1916.) 



NATIOTSTAL GUAE.D: Members of, who are ofScers or employees of the 
Govemment; as to leaves of absence, etc. 

Section 80 of the national defense act provides: 

"All officers and employees of the United States and of the Dis- 
trict of Columbia who shall be members of the National Guard shall 
be entitled to leave of absence from their respective duties, without 
loss of pay, time, or efficiency rating, on all days during which they 
shall be engaged in field or coast-defense training ordered or au- 
thorized under the provisions of this act." 

With reference to this provision, questions were submitfcetl and 
answered as follows: 

{a) What constitutes "field or coast-defense training ordered or 
authorized under the provisions of this act?" Answer: The field or 
coast-defense training contemplated is that prescribed in section 92, 
that each organization of the National Guard " shall participate in 
encampments, maneuvers, or other exercises, including outdoor tar- 
get practice, at least fifteen days in training each year" and again 
referred to in section 94 providing for the participation of National 
Guard troops in "encampments, maneuvers, or other exercises, in- 
cluding target practice for field or coast-defense instruction, either 
independently or in conjunction with a part of the Regular Arm3^" 

(Z>) What appropriation should be charged to cover the pay of the 
employees during their absence on the training above mentioned? 
Answer: From the appropriations from which they are paid at the 
time they take such leaves. 

(c) Is the authorized absence with pay in addition to, or to be 
deducted from, that authorized in the leave act of February 1, 1901 ? 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 597 

Answer: The two statutes constitute separate authorities for leaves 
of absence with pay. The leaves authorized by section 80 of the 
national defense act are additional to those authorized by the act of 
February 1, 1901. 

{d) Do the provisions apply to the absence of a Federal emx^loyee 
by direction of the governor of a State for tlie purpose of comply- 
ing with the following provisions of section 92 of the national 
defense act, " and shall, in addition thereto, participate in encamp- 
ments, maneuvers, or other exercises, including outdoor target prac- 
tice, at least fifteen days in training each year " ? Answer: Yes. The 
training is to be carried out by the several States. See section 91. 

(e) Do the exemptions of section 59 from militia duty prohibit the 
exempted persons from performing militia duty? Answer: That 
such exemption may" be waived by the individual is evident from 
section 80 providing for leaves of absence of all officers of the United 
States who shall be meml^ers of the National Guard. • ■■\ 

(/) If optional, are those exempted by section 59 entitled to the 
benefits of section 80 of the national defense act providing for leaves 
of absence? Answer: Yes. The fact that the service is optional does 
not deprive the person of leaves of absence authorized by section 80. 

{g) Do the terms " artificers and workmen" as employed in section 
69 comprise " all employees at arsenals," or are there excepted classes 
such as those performing clerical, designing, or supervising duties? 
Anmver: The word " workmen " is one of broad meaning. Whether it 
includes those performing clerical, designing, or supervising duties, I 
deem it unnecessary to determine. I am informed that all persons 
performing clerical, designing, or supervising duties in arsenals are 
in the civil service of the United States. They are, therefore, execu- 
tive officers of the United States and are exempted under section 59 
whether they be included in the term " workmen " or not. Section 
59 by exempting executive officers of the Government of the United 
States and artificers and workmen in the armories and arsenals in- 
cludes within its provisions, I think, all persons employed at such 
armories or arsenals. 

(16-407, J. A. G., July 14, 1916.) 



NATIONAL GUABD: Minors under 18 not eligible for enlistment. 

The question was presented whether a minor under 18 years of age 
may, with the consent of his parents or guardian, legally be enlisted 
in the National Guard. Section 58 of the national defense act pro- 
vides : 

" The National Guard shall consist of the regularly enlisted militia 
between the ages of eighteen and fortj^-five jears organized, armed, 
and equipped as hereinafter provided, and of commissioned officers 
between the ages of twenty-one and sixty-four years." 

Held., that this provision is controlling and limits the ages for 
qualification as therein specified, and that the provisions in section 27 
relating to the ages for enlistment or muster in have no application 
to the National Guard. 

(34-110, J. A. G., July 7, 1916.) 



598 DIGEST OF OPIlSriONS OF THE JUDGE ADVOCATE GENEEAL. 

NATIONAL GUARD: Passing of enlisted men to National Guard Heserve 
wliile in the Federal service. 

Enlisted men of the Organized Militia who qualify as national 
guardsmen under sections 69 and 70 of the national defense act of 
June 3, 1916, respecting the oath and contract of enlistment, become 
bound thereby for six years' service, three years in the- " active or- 
ganization and the remaining three years in the National Guard 
reserve," credit being given for the "period alread}' served under the 
old enlistment contract." 

Held^ that those members so qualified who are in the active service 
of the United States under the President's call of June 18, 1916, 
which call did not include the National Guard reserve, are entitled 
to be mustered out of the active service at the end of their active en- 
listment period of three years for the purpose of taking their place 
m the National Guard reserve, and that they can not be held for 
further active service against their will, but that they have the privi- 
lege^ under section 69 of the national defense act, of continuing in 
the active service during the whole of the enlistment period; and fur- 
ther^ that they may, with the concurrence of the War Department, 
elect to continue in active service for such portion of the remaining 
three 3^ears during which the National Guard shall remain in active 
Federal service. 

(58-052, J. A. G., July 26, 1916.) 



NATIONAL GIT ABB: Telegraph service at Government rates. 

The question was presented whether telegrams sent by the ad- 
jutant general of a State in pursuance of the President's orders call- 
ing out the National Guard should be paid for at GoAernment rates. 
The Government rates provided for by section 5266, Revised Statutes, 
apply to messages sent by " officers and agents " of the Government 
of tlie United States on official business. 

Ileldy that the adjutant general of a State who sends telegrams in 
pursuance of the President's orders calling out the National. Guard 
acts as an agent of the Federal Government within the purview of the 
statute, as the execution of such orders is wholly the business of the 
Government of the United States, and that such telegrams should 
be paid for from Federal appropriations at Government rates and 
not the regular commercial rates. 

(22-050, J. A. G., July 17, 1916.) 



NATIONAL GUARD: Waiver of exemption from military duty. 

With reference to section 59 of the national defense act of June 3, 
1916, providing for the exemption of certain classes of pei*sons from 
militia duty. 

Tleld^ that the exemptions are personal and may be waived, and 
that a person who waives his exemption by enlisting in the National 
Guard can not thereafter during the enlistment avail himself of it. 

(58-052, J. A. G., July 3, 1916.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 599 

OPFICEE-S: Appointment of persons not citizens of the United States. 

The pending Army appropriation bill contains the provision 
that— 

" No part of the appropriation made in this act shall be available 
for the salary or pay of any person hereafter, in time of peace, 
appointed an officer in the Army, who is not a citizen of the United 
States." 

Ueld^ that this does not repeal the provisions of existing law 
authorizing the appointment of native Filipinos as officers of Philip- 
pine Scouts, and of native citizens of Porto Rico as officers in the 
Porto Rico regunent. 

(6-260, J. A. G., July 3, 1916.) 



OFPICEErS: Promotions in Quartermaster Corps. 

The new national-defense act provides for certain increases of 
officers in the Quartermaster Corps but prescribes no rule for filling 
the vacancies. 

Eeld^ that the new positions created belong to the Quartermaster 
Corps as a vrhole, and the rule prescribed by the act of August 3, 
1912 (37 Stat., 591), in connection with the reorganization of that 
corps, is not applicable, and that the vacancies are required to be 
filled according to the general rule of seniority prescribed in section 
1 of the act of October 1, 1890 (26 Stat., 563). 

(6-224, J. A. G., July 3, 1916.) 



OmCEE-S: Scope of examination for appointment. 

Section 16 of the national-defense act approved June 3, 1916, re- 
lating to the appointment of veterinarians, contains the proviso — 

" That no such appointment of any veterinarian shall be made un- 
less he shall first i^ass satisfactorily a practical professional exam- 
ination as to his fitness for the military service." 

Held, that as the act limits the character of the examination to a 
practical professional and physical examination, it excludes a the- 
oretical examination, and the examination required must be confined 
to such inquiry as will determine the ability of the applicant skill- 
fully to perform his profession, but may include a written examina- 
tion on questions of a practical nature. 

(64-221.4, J. A. G., July 1, 1916.) 



OFFICERS' RESERVE CORPS: Number of officers authorized in various 
grades. 

Section 37 of the national defense act contains the following pro- 
vision : 

'"''Pr'ovided, That the proportion of officers in any section of the 
Officers' Reserve Corps shall not exceed the proportion for tiie same 
grade in the corresponding arm, corps, or department of the Regular 
Army, except that the number commissioned in the lowest authorized 
grade in any section of the Officers' Reserve Corps shall not be 
limited." 



600 DIGEST OF OPINIOlSrS OF THE JUDGE ADVOCATE GENERAL. 

Inquiry "was made whether the maximum number that may be com- 
missioned in each grade of tlie quartermaster section is limited and, 
if so, -what the maximum number may be in each grade except the 
lowest. 

Held:, that this provision does not limit the number who may be 
commissioned in any grade above the lowest, except by the propor- 
tion which the number in that grade in the corresponding arm, corps, 
or department of the Regular Army bears to the number in other 
grades in that arm, corps, or department, and that the number that 
may be commissioned is unlimited so long as the proportion between 
grades, except as to any maximum number for the lowest, is main- 
tained in the same manner as established for the grades of the cor- 
responding arm, corps, or department of the Regular Army. 

(6-224, J. A. G., July 7, 1916.) 



BETIRED OFFICER: Commission in National Gruard. 

A retired officer inquired whether it would prejudice his Regular 
Armj^ status to accept a commission as an officer in the National 
Guard. (Sec. 74, national defense act.) 

Held^ that the status of retired officers will not be impaired by 
active service under a National Guard commission. During their 
service as National Guard officers in the active service of the United 
States they will receive only the pay of their National Guard offices. 

(8&-542'.l, J. A. G., July 7, 1916.) 



BETIIIED OFFICERS: Question as to pay and allowances when assigned to 
active duty. 

The last sentence of section 24 of the national defense act concludes 
as follows: 

^"And provided further, That hereafter any retired officer who has 
been or shall be detailed on active duty shall receive the rank, pay, 
and allowances of a grade not above that of major that he would 
have attained in due course of promotion if he had remained on the 
active list for a period beyond the date of his retirement equal to 
the total amount of time during which he has been detailed on active 
duty since his retirement."- 

With reference to this provision, questions Avere submitted and 
answered as follows : .,.-..- 

{a) "Is a retired officer detailed at an institution of learning on 
full-pa}^ status considered as on active duty within the meaning of 
section 24, last sentence, of the new act of Congress?" Answer: Yes. 
Section 45 of said act prescribes that the officers so detailed shall 
receive " the full pay and allowances of their grade," if the officer 
be not above the grade of major, and if above that grade the " same 
pay and allowances as a retired major would receive under the like 
detail." While service on college duty has not been expressly desig- 
nated by statute as active dvty^ (^ongress has authorized the detail 
of actiA'C officers on such duty, and I think where tlie law under 
which the detail of a retired officer is made provides that while on 



DIGEST OF OPi:N'IO]SrS OF THE JUDGE ADVOCATE GENERAL. 601 

such duty he shall receive the full pay of his grade, service under 
such detail must be regarded as service " on active duty " within the 
meaning of section 24 of the national defense act, above quoted. 

(h) "What of retired officers detailed under the act of 1904?" 
Answer: With respect to a retired officer detailed to an educational 
institution under the act of April 21, 1904 (32 Stat. 255), I think 
the question should be answered in the negative. That statute au- 
thorized the detail to the particular duty under conditions that the 
detail should be made with the officer's consent, and that the officer 
so detailed should receive no compensation from the Government 
other than his retired pay — it being contemplated that the institu- 
tion should supplement his pay and provide allowances by way of 
additional compensation. I think it is clear that an officer detailed 
under this act was not regarded as detailed on active duty, and is 
not to be regarded as having been " on active duty within the mean- 
ing of section 24, last sentence." of the national defense act. 

(<?) " Will an officer detailed under section 45 of the same act be 
considered as on active duty under section 24?" Answer: This 
question is already answered under {a). 

(d) " Will a retired officer detailed under section 56 of the same 
act be considered as on active duty under section 24? Will he be 
entitled to full pay and allowances? " Ansrner: Section 56 does not 
expressly authorize the detail of retired officers or noncommissioned 
officers to the schools and colleges specified therein, but confers au- 
thority for the detail of " such commissioned and noncommissioned 
officers of the Army to said schools and colleges." I think that this 
section only confers authority for the detail of officers and noncom- 
missioned officers on the active list, and that the authority for the 
detail of retired officers and noncommissioned officers to such schools 
and colleges must be found in other statutes. 

(88-620, J. A. G., July 25, 1916.) 



DECISIONS OF THE COMPTROLLEit OF THE TEEASTJEY. 

(Digests prepared in the office of the Judge Advocate General.) 

ARMY RESEUVE: Continuous-service pay. 

The following questions were submitted for decision : 

"(«) Whether an enlisted man who has been transferred to the 
Army reserve may be discharged from the reserve and reenlisted be- 
fore the expiration of his existing seven-year tenn upon being called 
to the colors in time of war." 

"(/>) V/hether time spent in the Army reserve, not with the colors, 
is to be counted in computing continuous-service pa}^" 

Held, that both the acts of August 24, 1912 (37' Stat., 590), and 
June 3, 1916 (Public No. 85, 64th Cong.), provide that an enlisted 
man furloughed to the Army reserve is not entitled to be discharged 
and reenlisted until the expiration of his seven-3^ear term of enlist- 
ment. Question {a) answered in the negative. 

Held, as to question (&), that the acts of August 24, 1912, and 
June 3, 1916, contemplate four and three years, respectively, of active 



602 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

se^^ ice, and not service in the reserve, in making up an enlistment 
period for the purpose of computing continuous-service pay, and 
that, therefore, time spent in the Army reserve, not with the colors, 
can not be counted in computing continuous-service pay. 
(Comp. Treas., June 23, 1916.) 



CADETS: Burial expenses. 

In the case of a cadet. United States Military Academy, who died 
at Rock Island Arsenal, 111., request was made for funds for the 
payment of bill for services rendered in furnishing casket and pre- 
l>a'ring the remains for shipment. 

Ileld^ that the expenses were not payable from the funds appro- 
priated by the sundry civil appropriation act for the disposition of 
the "remains of officers, including acting assistant surgeons, and 
enlisted men of the Army active list * * * " for the reason that 
the cadets are neither officers, acting assistant surgeons, nor enlisted 
men of the Army active list, and further^ that such expenses could 
not be paid from the appropriation for contingencies of the Army 
or any other existing appropriation for the Military Establishment. 

(Comp. Treas., July 28, 1916.) 



CLAIMS: Damages caused by tort of Government employee. 

A post laundry delivery automobile collided with a privately 
owned vehicle, resulting in $18.25 damage to the latter, the evidence 
tending to show that the collision was due to the fault or negligence 
of the driver of the laundry wagon. The question was presented 
whether the funds of the post laundry were available for the pay- 
ment of the claim. 

IleM., that the post laundry, being a Government plant, and the 
driver of the delivery automobile being a Government employee, 
the case came within the well-established rule that damages caused 
'I)y the negligence or torts of the officers or agents of the Govern- 
ment, or arising from unavoidable accident, do not constitute claims 
against the United States which the accounting officers can allow or 
pay. 

(Comp. Treas., June 30, 1916.) 



COMPEITSATION : Computation of pay for services other than personal. 

In making payments for the hire of teams used in river and har- 
bor work during a 31-day month the disbursing officer computed the 
compensation on the basis of 30 days to the month. Held, that the 
act of June 30, 1906, 34 Stat., 763 (see also par. 651, Army Regula- 
tions) , is confined to the computation of compensation of officers, 
agents, and employees of the United States for personal service, and 
luss no application to a case like the one under consideration, for the 
hire of a wagon and team. 

(Comp. Treas., June 29, 1916.) 



DIGEST OF OPINIONS OF THE JUTK3E ADVOCATE GENERAL. 603 

EiiJIilSTED ME2?: Reduction of grades under tke national defense act. 

With reference to decreases in the number of enlisted men of 
diiferent grades provided by the national defense act and of the ap- 
plicabilit}' thereto of the p^o^'ision in section 28 of that act that 
" nothing herein contained shall operate to reduce the pay or allow- 
ances now authorized by law for any giade of enlisted man of the 
Army — ■ 

Held, that this provision relates to the pay of grades and not of 
individuals, and that demotion of individual soldiers, if found neces- 
sary to be made in order to comply with the law providing for a 
reduction in the members of grades in any particular line of the 
Army, is not a reduction of pay or allowances fixed by law for such 
grades, and hence would not be prohibited bv this provision. 

(Comp. Treas., July 19, 191G.) 



MEDICAL CORPS: Computing- length of service of dental surgeons. 

A decision was requested whether in computing, under the pro^i- 
sions of section 10 of the national defense act, the length of service 
of dental surgeons, for promotion and other purposes, all such dental 
surgeons as had service as contract or acting dental surgeons prior to 
June 3, 1916, if otherwise eligible, should be given credit* for the 
length of their service as such contract or acting dental surgeons, 
in addition to credit for service as first lieutenants, under the act 
of March 3, 1911 (36 Stat, 1054). Section 10 of the national de- 
fense act, authorizing the appointment of dental surgeons as com- 
missioned officers, provides, inter alia: 

" Dental surgeons shall have the rank, pay, and allowances of first 
lieutenants until they have completed eight -years' service. Dental 
surgeons of more than eight but less than twenty-four years' service 
shall, subject to such examination as the President may prescribe, 
have the rank, pay, and allowances of captains. Dental surgeons of 
more than twenty- four years' service shall, subject to such examina- 
tion as the President may prescribe, have the rank, pay, and allow- 
ances of major." 

The act of March 3, 1911, contains the provision that — 

"Acting dental surgeons who have served three years in a manner 
satisfactory to the Secretarj?^ of War shall be eligible for appointment 
as dental surgeons, and after passing in a satisfactory manner an 
examination which may be prescribed by the Secretary of War may 
be commissioned with the rank of first lieutenant in the Dental Corps 
to fill the vacancies existing therein ; " and also contains a provision — 

"That the time served by dental surgeons as acting dental or con- 
tract dental surgeons shall be reckoned in computing the increased 
service pay of such as are commissioned under this act." 

Ileld^ that the provision quoted from the act of 1911 was not re- 
pealed by the national defense act, and that the two provisions should 
be read together; that the term "years' service " as used in the act of 
June 3, 1916, includes service under contract as well as sernce under 
commission, and is limited to service as a dental svrgeon under con- 
tract or commission ; and that therefore, in computing under said 
law the length of service of dental surgeons, for promotion and 



604 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

other purposes, all such dental surgeons as are otherwise eligible and 
have service as contract dental surgeons or acting dental surgeons 
prior to June 3, 1916, shall be given credit for the length of their 
service as such contract dental surgeons or acting dental surgeons, 
in addition to credit for service as first lieutenant under the acti of 
March 3, 1911. 

(Comp. Treas., July 22, 191G.) 



NATIONAL GUAED: Additional pay of enlisted men qualifying as gun- 
ners. 

The question was presented whether enlisted men of the Field Ar- 
tillery of the Militia or National Guard in the Service of the United 
States are entitled to additional pay as gunners under qualifications 
attained prior to being called into the Federal service, their exami- 
nations having been conducted in accordance with the requirements 
for the Regular Army. 

Ileld^ that inasmuch as the requirements for qualifications as gun- 
ners are the same for the enlisted men of the Field Artillery of the 
militia or National Guard as for the enlisted men of the Regular 
Army, and as the laws relating to pay give the militia, when called 
into the service of the United States, the same pay and allowances as 
are or may be provided by law for the Regular Army, they are en- 
titled to tiie additional pay as gunners under their qualifications at- 
tained prior to their being called into the service of the United States, 
sul)ject to the conditions imposed by paragraph 1344, Army Regu- 
lations. 

(Comp. Treas., July 21, 1916.) 



NATIONAL GUAED: Laws providing for death gratuities applicable to. 

The question was presented whether officers and enlisted men of the 
Organized Militia or National Guard called or drafted into the serv- 
ice of the United States are entitled to the benefit of the laws au- 
thorizing the payment of so-called death gratuities. (Act of May 11, 
1908, 35 Stat., 108, as amended Mar. 3, 1909, 35_Stat., 735.) 

Held, that any part of the Organized Militia or National Guard 
brought into the service of the United States as provided by law 
becomes a part of the Army of the ITnited States, and the officers 
and enlisted men thereof are as effectually in the military service of 
the United States as are any of the officers and enlisted men of the 
Regular Army, and that they are entitled to the benefits of the stat- 
utes under consideration providing for death gratuities. 
(Comp. Treas., July 20, 1916.) 



EETIREI) OFFICEKS: Longevity pay for active service in time of war. 

The question was presented whether the following provision in 
section 24 of the national defense act of June 3, 1916, authorized 
longevity-pay increases: 

" That in time of war retired officers of the Army may be employed 
on active duty in the discretion of the President, and when so em- 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 605 

ployed they shall receive the full pay and allowances of their grade: 
Arid ■provided further^ That hereafter any retired officer who has 
been or shall be detailed on active duty shall receive the rank, pay, 
and allowances of the grade, not above that of major, that he would 
liave attained in due course of promotion if he had remained on the 
active list for a period beyond the date of his retirem.ent equal to the 
total amount of time during which he has been detailed' on active 
duty since his retirement." 

The act of March 2, 1903 (32 Stat, 932), provides: 

" That hereafter, except in case of officers retired on account of 
wounds received in battle, no officer now on the retired list shall be 
allovred or paid any further increase of longevity pay, and officers 
hereafter retired, except as herein provided, shall not be allowed or 
paid any further increase of longevity pay above that which had 
nccrued at date of their retirement." 

IleM., that the act of June 3, 1916, does not expressly, or by neces- 
sary implication, repeal or modify any part of the act of March 2, 
1903, and that as the latter act express!}^ provides that time after 
retirement shall not be counted for longevity purposes, officers 
coming v/ithin the provision in question of the act of June 3, 1916, 
are not entitled to any higher pay in the grade that they would have 
attained in due course of promotion if they had remained on the 
active list than the pay of such higher grade computed on the length 
of their service at the time of their retireii!^nt. 

(Comp. Treas., July 28, 1916.) 



COTJUT DECISION. 

(Digest prepared in the office of the Judge Advocate General.) 

NATURALIZATION: Alien enlisted men furlouglied to Army Reserve. 

Section 2166, Revised Statutes, provides that any alien of the age 
of 21 years and upward, who has enlisted or may enlist in the armies 
of the United States and has been honorably discharged, shall be 
admitted to become a citizen upon his petition without any previous 
declaration of intention. The fourth article of war declares that no 
discharge shall be given to any enlisted man before his term of 
service is expired except by order of the President, Secretary of War, 
the commanding general of a department, or by sentence of court- 
martial. An enlisted man (alien) who, after three years' active 
service, had been furloughed to the Army Reserve, filed an applica- 
tion for naturalization under section 2166, Revised Statutes. 

Tleld^ that his certificate of furlough was not an honorable dis- 
charge entitling him to apply for citizenship under section 2166, 
Revised Statutes. 

(In re Markiin, 232 Fed., 1018.) 



BULLETIN 34. 

Bulletin 1 WAR DEPARTMENT, 

No, M. J Washington, Sej)temher 12, 1916. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of August, 1916, and of certain decisions 
of the Comptroller of the Treasury and of a court, is published for 
the information of the service in generaL 
[2458489, A. G. O.] 
By order or the Secretary of War : 

H. L. SCOTT, 
Major General, Chwf of JSfaf. 
Official : 

H. P. McCAIN, 

Tk^ Ad'mfant Gen^iral. 



OPIMOIfS OF THE JUDGE ADVOCATE GEITSEAL. 

AKMY OSGAWIZATION: Enlisted men for Tarigade headquarters. 

Section 3 of the National Defense Act contains the provision that 

"Nothing herein contained, however, shall prevent the President 
* * * from prescribing new and different organizations and per- 
sonnel as the efficiency of the service may require." 

Held, that in the organization of brigade headquarters the above 
provision would not authorize the creation of any grade not known 
to the law, such as a suggested brigade sergeant major, but that the 
l*resident in the organization of brigade, division, or Army corps 
headquarters may employ such enlisted men in the grades and 
V ithin the numerical limits authorized by law, in addition to those 
required for organizations, as he may determine to be necessary for 
the purpose, and may, therefore, include in the organization of a 
brigade headquarters as a part thereof and not detailed from any 
organization a sergeant major with the rank, pay, and allowances of 
whatever grade of sergeant major he may designate; and further^ 
that he maj^ also include in the organization of a brigade headquar- 
ters as personnel thereof and not pertaining to any other organiza- 
tion, such enlisted men of other grades authorized by law as he may 
deem necessary. 

(6-237, J. A. G., Aug. 2, 1916.) 



AKMY EESEEVE: Org-anization of. 

Section 31 of the National Defense Act authorizes the President 
" to assign members of the Regular Army Reserve as reserves to 
particular organizations of the Regular Army, or to organize the 
Regidar Army Reserve, or any part thereof, into units or detach- 

606 



DIGEST OF OPIXIOXS OF THE JUDGE ADVOCATE GEISTEEAL. 607 

merits of nnj arm, corps, or department in such m.anner as he may 
prescribe," and, in the event of actual or threatened hostilities, to 
'" mobilize the Eegular Army Reserve in such manner as he may 
determine, and thereafter retain it, or any part thereof, in active 
service for such period as he may determine the conditions demand." 

Held, that the law contemplates that the President may cause 
reservists to be organized at all times in the manner indicated and 
that, in the discretion of the President, they may be attached, as 
such, to organizations of the Eegular Array that are at maximum 
strength, but when so attached they are not constituent parts of such 
(U-ganizations, and form no part of the numbers authorized by law 
for such organizations. 

(C-300, J. A. G., Aug. 23, 1916.) 



ABMT BESEP.VE: Physical disability of members called to the colors. 

In the case of a member of the Eegular Army Eeserve called to 
the colors it was found that he was afflicted with a veneral disease 
contracted after he was furloughed to the reserve. He having been 
accepted as '"physically fit for service" upon reporting for duty, 
except for this disability requiring only temporary hospital treat- 
ment, the question v\'as presented whether his absence from duty 
while in the hospital on this account came within the purview of 
the act of August 24, 1912 (37 Stat., 572), providing for deduction 
from the pay of an oflicer or enlisted man for time absent from duty 
on account of disease resulting from his own misconduct, etc. (G. O. 
31, W. D., 1912). 

Held, that when the reservist was accepted upon reporting for 
duty he was in active service, and thereupon became subject to the 
statute referred to; that the disease he had is regarded as a disease 
proscribed by that act, and that as it was incurred during his current 
enlistment, which was entered into subsequent to the passage of that 
act, he was not entitled to pay for the time he was absent from duty 
on account of such disease. 

(6-^00, J. A. G., Aug. 29, 191G.) 



CONTP.ACTS: Questions arising' out of the default of contractor; appro- 
priations, 

A contractor for furnishing Quartermaster supplies defaulted 
and, in accordance with the provisions of the contract, the Govern- 
ment purchased the required supplies in the open market at an excess 
cost of $800.36. The amount retained from payment to the contractor 
Mas only $61, and the surety bond was in the penal sum of $500. 

Held, that demand could be made upon the surety for only $500, 
which, when collected, should be deposited to the credit of the ap- 
propriation for the supplies, and not deposited as miscellaneous 
receipts (18 Comp. Dec, 430), and that the $64 should remain in the 
appropriation for the supplies. Advised that if the surety refused 
to pay the amount of the penalty on demand the facts should be 
reported to tlie Attorney General with a view to the enforcement of 
the demand by judicial proceedings. 

(76-742, J. A. G., Aug. 11, 1916.) 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 

CONTRACTS: Unforeseen conditions not within the contemplation of the 
parties. 

After certain contracts were made for furnishing' hay and bedding 
for troops in the Southern Department for the fiscal j^enr 11)17, which 
specified the probable quantities of material which would be required 
to meet the needs of the service and the limits within which the 
quantities might be increased or decreased, the Organized Militia 
and National Guard were called out for dut}^ in that department, 
which resulted in a greatly increased demand for hay and bedding. 
Calls were made upon the contractors in the five weeks beginning 
July 1, 1916, to deliver more than one-half of the quantity specified 
in the contracts for the entire year. 

Ileld^ that the contracts were entered into under conditions which 
contemplated that only the usual number of troops of the Eegadar 
Arnw would be stationed in the Southern Department, and that the 
contracts should receive execution in accordance with such under- 
standing of the parties; that, therefore, calls should be made under 
the contract for deliveries based upon the conditions contemplated, 
and purchases required to meet the needs of the service due to the 
calling out of the militia troops should be made by supplemental 
contracts or purchases in the open market. 

(76-700, J. A. G., Aug. 16, 1016.) 



BENTAL SUPvGEONS: Relative rank under ISTational Defense Act. 

The act of March 3, 1911, prescribed the following rule for the de- 
termination of the rank of officers of the Dental Corps : " Officers of 
the Dental Corps shall have rank in such corps according to the date 
of their commission therein, and shall rank next below officers of the 
Medical Eeserve Corps." Section 10 of the National Defense Act 
creates the grades of first lieutenant, captain, and major in the Dental 
Corps. 

Ilelcl^ that the latter provision repealed the former, and that the 
relative rank of dental surgeons is to be determined by paragraphs 9 
and 11, Army Eegulations, 1913. 

(82-212, J. A. G., Aug. 19, 1916.) 



ENLISTED MEN: Abolishment of grade of farrier. 

The question was presented whether a farrier of a Cavalry organi- 
zation at the time the National Defense Act went into eifect should 
be continued as a private or be appointed to any grade " in which 
eligible and fit." 

Ileld^ that the National Defense Act by not including farriers in 
the composition prescribed for Cavalry units abolished that grade 
with the result that enlisted men holding the grade of farrier re- 
verted to the grade of private and will continue to serve as such 
unless they are" appointed to some grade authorized by the National 
Defense Act. 

(6-242, J. A. G., Aug. 4, 1916.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 609 

MEDICAL CORPS: Increase of officers in. 

Section 24 of the National Defense Act declares that — " Except as 
otherwise specifically provided by this act, the increases in the com- 
missioned and enlisted personnel of the Regular Army provided by 
this act shall be made in five annual increments, each of which shall 
be, in each grade of each arm, corps, and department, as nearly as 
practicable, one- fifth of the total increase authorized for each arm, 
corps, and department." Section 10 fixes the number of officers of the 
Medical Corps at approximately seven for each one thousand enlisted 
men. 

Held^ that the prescribed ratio of seven officers to each one thou- 
sand enlisted men for the Medical Corps did not become effective 
with the passage of the act of June 3, 1916, but that the total author- 
ized increase of officers in said corps, to be determined according to 
the total authorized enlisted strength, including all increments, is 
subject to the provision in section 24 requiring the increases to be 
made in five approximately equal increments. 

(6-227, J. A. G., Aug. 19, 1916.) 



NATIONAL GUARD: Authority of governor to accept officer's resignation. 

The question was presented whether the governor of a State has 
the power to accept the resignation of an officer of the National 
Guard who is in the service of the United States under a Federal call. 
Section 77 of the National Defense Act provides, inter al-m^ that — 

" Commissions of officers of the National Guard may be vacated 
upon resignation^ absence without leave for three months, upon the 
recommendation of an efficiency board, or pursuant to sentence of a 
court-martial. * * * " 

Fleld^ that Congress, by the National Defense Act, having assumed 
control respecting the qualifications of officers and enlisted men of 
the National Guard, and respecting the continuity of their service 
therein, it clearly appears to be the purpose of the statute that even 
in time of peace the assent of the War Department is required to the 
separation of an officer from the National Guard by resignation, and 
a fortioi'i where the officer is in the service under a Federal call. 

(58-241, J. A. G., July 28, 1916. ) 



NATIONAL GUARD-: Effect of discharge of members by the United States. 

The question was presented whether National Guardsmen in the 
active service of the United States and discharged therefrom on ac- 
count of dependent families, may be retained in the National Guard 
service at their home station. 

Held^ as follows: 

" The National Defense Act, under which the National Guard is 
organized, prescribes for enlisted men a dual oath involving respon- 
sibility both to the State in the National Guard of which they are 
enlisted and to the United States. One of the effects of the National 
Defense Act is to require that the enlisted men thereof must be quali- 
fied for the service of the United States as well as for the service of 
93668°— 17 39 



610 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the State and be bound by the terms of their oaths of enlistment to 
the service of each in order to be recognized as a member of the Na- 
tional Guard. I think it is plain that when the National Guard so 
organized is in the service of the United States the general govern- 
ment may legally determine when members thereof shall be dis- 
charged therefrom. When it has been determined that, for any cause, 
an enlisted man shall be discharged and a discharge has been issued, 
the enlisted man so discharged is released from his obligation to the 
United States by that action, and, since he is no longer obligated to 
the United States under the terms of his oath, he does not meet the 
requirements for recognition as a member of the National Guard. 
Therefore he cannot continue as a member of the National Guard, 
one of the requirements for membership therein being that he shall 
be under the obligation of an oath to serve the United States." 
(28-223, J. A. G., Aug. 25, 1916.) 



NATIONAL GUABD: Increase of pay for aviation service. 

The question was presented whether officers and enlisted men of 
militia organizations brought into the service of the United States 
are entitled, while on duty requiring them to participate regularly 
and frequently in aerial flights, to increase of pay for such service, 
the same as provided by statute for officers and enlisted men of the 
Regular Army. 

Held, that while the Aviation Section of the Signal Corps, pro- 
vided for in section 16 of the National Defense Act, is prescribed for 
the Regular Army only, and officers and enlisted men of the National 
Guard are not eligible for detail to fill places therein, and while there 
is no corresponding Signal Corps or Aviation Section prescribed for 
the National Guard, there may be Aviation Squadrons, or unit parts 
thereof, in the National Guard of the several States as component 
parts of the "complete higher tactical units" contemplated by sec- 
tion 60, idem, and the officers and enlisted men therein will, when 
duly qualified, be entitled while in the actual service of the United 
States, or while attending encampments or maneuvers ordered by the 
Secretary of War, to the same pay and allowances as officers and 
enlisted men of corresponding grades of the Regular Army receive, 
including increase of pay while on duty requiring them to participate 
regularly and frequently in aerial flights. 

(68-211, J. A. G., Aug. 25, 1916.) 



NATIONAL GUAED: Original appointments of officers to advanced grade. 

The question was presented whether the governor of a State can 
make an original appointment of a person to the grade of captain or 
major in the medical corps of the National Guard, or whether such 
office must be filled by promotion from a lower grade in conformity 
with the rules governing appointments in the Regular Army. Sec- 
tion 60 of the National Defense Act contains the following provision, 
which is substantially a reenactment of a similar provision in section 
3 of the Militia Act of 1903, as amended : 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 611 

" Except as otherwise specifically provided herein, the organization 
of the National Guard, including the composition of all units thereof, 
shall be the same as that which is or may hereafter be prescribed for 
the Eegular Army, subject in time of peace to such general exceptions 
as may be authorized by the Secretary of War." 

Held^ that the conformity of organization of the National Guard 
to the Eegular Army required by the statute does not relate to the 
qualifications of officers for appointment or promotion; that the 
matter of appointment or promotion in the National Guard rests pri- 
marily with the governor of the State, subject to the rules prescribed 
in section 74 of the National Defense Act relating to the classes of 
persons from which National Guard officers shall be appointed, and in 
section 75, relating to examinations to determine qualifications, afid 
that, therefore, an original appointment to the grade of major may, 
subject to the restrictions mentioned, be made by the governor with- 
out regard to the previous service of the appointee ; but that inasmuch 
as the office of captain in the Medical Corps has no existence inde- 
pendent of the person qualified by a period of service to fill it, ap- 
pointees to that grade in the Medical Corps of the National Guard 
must have served as first lieutenants for the period fixed by law. 

(58-241, J. A. G., Aug. 14, 1916.) 



OmCERS' RESERVE CORPS: Organizational questions. 

The second paragraph of section 37 of the National Defense Act 
authorizes the President to appoint and commission as reserve officers 
in the various sections of the Officers' Reserve Corps, in all grades up 
to and including that of major, such citizens as shall, upon examina- 
tion, be found qualified to hold such commissions, 

" Provided^ That the proportion of officers in any section of the 
Officers' Reserve Corps shall not exceed the proportion for the same 
grade in the corresponding arm^ corps, or department of the Regular 
Army, except that the number commissioned in the lowest authorized 
grade in any section of the Officers' Reserve Corps shall not be 
limited." 

Held^ that there are no organizational grades in the Veterinary 
Corps nor in the Dental Corps and that, therefore, veterinarians can 
be appointed in the Officers' Reserve Corps only as assistant veteri- 
narians with the rank of second lieutenant, and dental surgeons may 
be appointed therein only as first lieutenant, and that in neither case 
can the officer attain a higher rank except through active service for 
the time prescribed for the attainment of higher rank. 

Held further^ that as to the Medical Department, the three corps: 
Medical, Dental, and Veterinary, are to be regarded as separate and 
distinct corps, for the purpose of determining the proportionate num- 
ber of officers to be commissioned in the Officers' Reserve Corps ; and 
that the proportion of the grades in the Medical Section proper of the 
Officers' Reserve Corps should be determined by the proportion which 
the number in the corresponding grades in the Medical Corps of the 
Regular Army bear to the total number of officers in the Medical 
Corps of the Regular Army, the grades of captain and first lieutenant 



612 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

in the Medical Corps of the Regular Army being considered one 
grade, that of first lieutenant, in making the computation ; and that 
the appointments to the dental and veterinary sections of the Officers' 
Reserve Corps, being only to the lowest in each, will be unlimited in 
that grade. 

Held further^ that for purposes of appointment in the Officers' Re- 
serve Corps the lowest authorized grade in the Quartermaster Corps 
is that of captain; to which grade in the Officers' Reserve Corps ap- 
pointments may be unlimited. 

Held further^ that the Signal Corps proper and the Aviation Sec- 
tion each constitutes a corps which should form the basis of an organi- 
zation in the Officers' Reserve Corps, the lowest grade in the Signal 
Corps being that of first lieutenant. As to the Aviation Section, 
held., that the grade of aviator, provided for in section 13 of the 
National Defense Act, was created as a means of meeting contin- 
gencies and supplying casual deficiencies, and should be regarded as 
temporary and not as a permanent grade or integral part of the 
Aviation Section, such as should be made a basis for appointments in 
the Officers' Reserve Corps, but the lowest grade of the Aviation Sec- 
tion in which an unlimited number of officers may be appointed is that 
of first lieutenant. 

(6-301, J. A. G., Aug. 29, 1916.) 



VETERINARIANS: Appointments under the National Defense Act. 

Section 16 of the National Defense Act authorizes the appointment 
of " such veterinarians of the Quartermaster Corps as are now em- 
ployed in said corps" as commissioned officers, with rank, pay, and 
allowances according to length of service as specified therein. 

Held., that those persons employed as inspectors of horses and as 
inspectors of meats, who are qualified veterinarians, come within 
such authorization and may be commissioned in the Veterinary 
Corps with rank, pay, and allowances as specified in the act. 

(64-221.4, J. A. G., Aug. 16, 1916.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

PAY AND ALLOWANCES: Foreign service pay. 

The question was presented whether troops regularly stationed in 
the Canal Zone should be regarded as in foreign service and entitled 
to foreign service pay when their duties take them across the line 
into the Republic of Panama. 

Held., that the duty to be performed by the troops in the Republic 
of Panama being merely incident to their assignment in the Canal 
Zone, thev are not entitled to foreign service pay. Decision of June 
26, 1916, 22 Comp. Dec, 701, distinguished. 

(Comp. Treas., Aug. 7, 1916.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 613 

PAY AND AliLOWANCES: Militia officers and enlisted men. 

In respect of officers and enlisted men of the Organized Militia 
or National Guard called into the service of the United States, the 
Comptroller of the Treasury has made the following rulings, based 
upon existing law : 

{a) Neither officers nor enlisted men are entitled to count their 
service in the Organized Militia or National Guard before the date 
when brought into the actual service of the United States for the 
purpose of longevity or continuous service pay. Officers are entitled 
to count their service after the date when brought into the actual 
service of the United States for the purpose of longevity pay, but 
enlisted men are not entitled to count such service for the purpose 
of continuous service pay. (Congress has provided for counting 
prior service in the Militia or National Guard in the case of officers 
and enlisted men of the National Guard drafted into the service of 
the United States under section 111 of the act of June 3, 1916.) 

(6) Officers who had prior service in the Regular Army or Marine 
Corps are entitled to count such service for the purpose of increase 
of pay, but enlisted men who had such prior service are not entitled 
to count it for such purpose — except for one enlistment, as provided 
in the act of May 11, 1908. 

((?) An enlisted man discharged from the Regular Army who is 
given a commission in a Militia or National Guard organization 
brought into the actual service of the United States is entitled to 
count his service in the Regular Army for the purpose of increase of 
pay as a commissioned officer of the Militia or National Guard, but 
an enlisted man so discharged who enlists in such an organization is 
not entitled to count his service in the Regular Army for the purpose 
of such increase of pay, and in either case, if he remains out of the 
Regular Army for a period of more than three months, he loses his 
right to count the continuous service which he had when discharged 
from the Regular Army in the event that he again enlists in the 
Regular Army. 

[d) A commissioned officer of the Regular Army who holds a com- 
mission in a higher grade in the Militia or National Guard brought 
into the actual service of the United States is entitled to the pay of 
the grade he holds in the Militia or National Guard, and for such 
time as he holds it, he is not entitled to pay of his grade under his 
commission in the Regular Army. The pay in the higher grade is 
his "annual pay" within the meaning of the act of May 11, 1908 
(35 Stat., 108), and it is on that pay that such officer is entitled to 
have his longevity increase of pay computed. 

(Comp. Treas., Aug. 28, 1916.) 



614 DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 

DECISION OF THE COURT, 

(Digest prepared in the office of the Judge Advocate General.) 

ITBUTRALITY LAWS: What constitutes a " military expedition or enter- 
prise." 

Five persons were indicted in the Southern District of New York 
for conspiring and taking steps to blow up the Welland Canal in 
Canada in violation of section 13 of the Federal Criminal Code, 
which provides: 

"Whoever, within the territory or jurisdiction of the United 
States, begins, or sets on foot, or provides or prepares the means for, 
any military expedition or enterprise, to be carried on from thence 
against the territory or dominions of any foreign prince or state, or 
of any colony, district, or people, with whom the United States are 
at peace, shall be fined not more than three thousand dollars and 
imprisoned not more than three years." 

The alleged purjDose in the intended destruction of the canal was 
to cripple the transportation facilities of Great Britain used for the 
transportation of military forces. 

Held^ that in order to promote a " military expedition or enter- 
prise," denounced by the act, there need not necessarily be a complete 
and high degree of military organization, but that if there be a pre- 
concerted plan of operations, with leadership, and a coordination of 
men and arms and munitions and other means for attacking the 
armies or navies of the belligerent, or crippling or destroying her 
military institutions, set on foot for the purpose and with the inten- 
tion of so attacking the belligerent nation in either aspect, and 
thereby to render aid and assistance to the enemy, the military enter- 
prise or expedition contemplated by the statute would seem to be 
complete. 

{United States v. Tauscher^ et al., 233 Fed., 597.) 



BULLETIN 39. 

Bulletin 1 WAR DEPARTMENT, 

No. 39. J Washington, October 6^ 1916. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of September, 1916, and of certain de- 
cisions of the Comptroller of the Treasury and of a court, is pub- 
lished for the information of the service in general. 
[2471382, A. G. O.] 

By order of the Secretary of War : 

TASKER H. BLISS, 
Major General^ Acting Chief of Staff. 
Officlal : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ARMY RESERVE: Promotion of members in active service. 

With reference to members of the Regular Army Reserve called to 
the colors and assigned to particular organizations of the Regular 
Army (sec. 31, national defense act), 

Held.) that when so assigned, reservists are eligible for promotion 
as other members of the organizations who are serving in the active 
period of their enlistment. 

(6-151.1, J. A. G., Sept. 27, 1916.) 



DETACHED SERVICE: Service in command of a headquarters company. 

The national defense act of June 3, 1916, provides for certain 
headquarters organizations designated as headquarters company for 
the Infantry and Artillery, and headquarters troop for the Cavalry. 
(Sees. 17, 18, and 19.) 

Held., that service of a commissioned officer in command of such a 
headquarters company or troop constitutes service " with a troop, 
batterv, or companv," within the purview of the detached-service act 
of 1912. 

(6-124.23, J. A. G., Sept. 25, 1916.) 



ENLISTED MEN: Commissioned service counted for purposes of retirement. 

Section 1 of the act of March 2, 1907 (34 Stat., 1217), provides: 
" When an enlisted man shall have served thirty j^ears either in 
the Army, Navy, or Marine Corps, or in all, he shall, upon making 
application to the President, be placed upon the retired list, * * * 

615 



616 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Provided^ That in computing the necessary thirty years' time all 
service in the Army, Navy, and Marine Corps shall be credited." 

Held, that under this statute time served as a commissioned officer 
in the National Guard in the actual service of the United States, or 
as a member of the Officers' Reserve Corps in active service, may 
properly be counted toward retirement of an enlisted man. 

(88-800, J. A. G., Sept. 22, 1916.) 



ENLISTED MEN: Pay of members of Coast Artillery Bands. 

Section 20 of the national defense act prescribing the composition 
of organizations of the Coast Artillery ('orps operated to abolish 
the three grades of chief musician, principal musician, and chief 
trumpeter in the Coast Artillery Bands, and created in lieu thereof 
the tv^o grades of band leader and assistant band leader. In a case 
where the principal musician, by reason of this statutory change, 
was reduced from that grade to band corporal the question was pre- 
sented, in view of the provision in section 28, national defense act, 
that— 

" Nothing herein contained shall operate to reduce the pay or 
allowances now authorized by law for any grade of enlisted men of 
the Army " — whether he was not entitled to receive the pay of his 
former grade of principal musician. 

Held, that the effect of the provision quoted from section 28 is 
only to prevent the reduction in the pay of grades and has no appli- 
cation where a grade is abolished and a new grade created in lieu 
thereof, as in the present case, and that, therefore, the band corporal 
who was reduced from a principal musician could not while he held 
the position of band corporal, receive more as base pay than that 
prescribed by the statute for that grade. 
(8-110, J. A. G., July 17, 1916.) 



ENLISTMENTS: Conviction of a felony a disqualification. 

An enlisted man of the National Guard was convicted of a crime 
in a Federal civil court and sentenced to imprisonment for 1 year 
and 10 months. By section 335 of the Federal Penal Code it is pro- 
vided that " all offenses which may be punished by death or imprison- 
ment for a term exceeding one year shall be deemed felonies," and by 
section- 1118, Revised Statutes, it is provided that "no person who 
has been convicted of a felony shall be enlisted or mustered into the 
military service." Section 69 of the national defense act declares 
with reference to the National Guard that " the qualifications for 
enlistment therein shall be the same as those prescribed for admis- 
sion to the Regidar Army." 

Held, that the man, having been convicted of a felony, was dis- 
qualified for reenlistment in the military service, including the Na- 
tional Guard, and that a pardon would not remove the disqualifica- 
tion; and he could not therefore be reenlisted or mustered into the 
military service of the United States except upon the removal of the 
disqualification by an act of Congress. 

(58-232, J. A. G., Sept. 23, 1916.) 



DIGEST OF OPINIONS OF THE JUI>GE ADVOCATE GENERAL. 617 

NATIONAL GUARD: Additional pay of enlisted men qualified as giinners. 

Certain enlisted men of the Coast Artillery, Connecticut National 
Guard, whose organizations were not called into the service of the 
United States, were individually inducted into the service for recruit- 
ing duty, in the absence of other troops available therefor. They 
were qualified as gunners under the Regular Army standards, and 
the question was presented whether they were entitled to additional 
pay as gunners for the time they were on recruiting duty. 

Held^ that the right to additional pay as qualified gunners is for 
the qualification itself, and is not dependent upon the character of 
the duty the men perform, and that the men were, therefore, entitled 
to the additional pay under the circumstances stated. 

(72-240, J. A. G., Sept. 9, 1916.) 



NATIONAL GrlTARD: Age limitation of officers. 

Section 58 of the national defense act of June 3, 1916, prescribing 
the composition of the National Guard, provides that it " shall con- 
sist of the regularly enlisted militia between the ages of 18 and 
45 years, organized, armed, and equipped as hereinafter provided, 
and of commissioned officers between the ages of 21 and 64 years." 

Section 73 of the same act provides that commissioned officers — 
"now serving under commissions regularly issued shall continue in 
office, as officers of the National Guard without the issuance of new 
commissions.'''' 

Held., that the purpose of the last-quoted provision was merely to 
dispense with the issuance of new commissions to officers continuing 
to hold their offices under the national defense act, and that it does 
not operate to continue in office any person not within the age limits 
prescribed in section 58. 

(58-051.1, J. A. G., Sept. 16, 1916.) 



NATIONAL GUARD: Commissioned officer holding elective State office. 

The question was presented whether a commissioned officer of the 
National Guard in the actual service of the United States could 
legally hold at the same time an elective State office. 

Held., that this is a question to be determined by the State where 
the elective office is held. (See 22 Op. Atty. Gen., 90.) 

(58-241, J. A. G., Sept. 6, 1916) 



OFFICERS' RESERVE CORPS: As to details for college duty. 

The question was presented whether an officer of the Officers' Re- 
serve Corps was eligible for detail, as an officer of the Army, for duty 
as professor of military science and tactics at an educational institu- 
tion. 

Held^ that sections 37 and 38 of the national defense act prescrib- 
ing the duties of members of the Officers' Reserve Corps operate to 
limit the duties upon which such officers may be employed to activity 



618 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

in connection with military forces actually in the service of the 
United States, and that such officers are not eligible for detail, as 
officers of the Army, for duty at educational institutions. 
(56-310, J. A. G., Sept. 28, 1916.) 



RETIREI) OFFICERS: Counting active service under detail for purposes 
of advancement in grade. 

Held, that service of a retired officer under a commission in the 
volunteers during the Spanish- American War could not be counted 
for the purpose of advancement in grade under section 24 of the 
national defense act, last sentence, which applies only to officers 
'' detailed to active duty." 

(88-600, J. A. G., Sept 30, 1916.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

GRATUITY: Designation of beneficiary. 

An enlisted man designated a friend as his beneficiary to whom 
the death gratuity provided for by Congress (see A. R. 1385) should 
be paid. He afterwards married, but did not file with The Adjutant 
General of the Army a new form, making his wife his beneficiary. 
After his death his wife claimed the gratuity, and submitted an affi- 
davit to the effect that her husband had told her that he had changed 
his designation and made her his beneficiary, and that he had sent 
the notification to Washington. She asserted that she was sure that 
he had mailed the new designation. Her affidavit was corroborated 
by a sergeant. The statute (act of May 11, 1908, 35 Stat., 108) de- 
clares that — 

" The Secretary of War shall establish regulations requiring each 
officer and enlisted man to designate the proper person to whom this 
amount shall be paid in case of his death, and said amount shall be 
paid to that person from funds appropriated for the pay of the 
Army." 

Held, that the gratuity is required by the statute to be paid in ac- 
cordance with the formal designation of record, if there be such a 
designation, and that the evidence offered in the instant case could 
not be accepted as sufficient to justify payment to the widow. 
(Compt. Treas., Aug. 3, 1916.) 



TELEPHONE SERVICE: Installation of, in private quarters. 

The commanding officer of a post requested authority for the in- 
stallation of a telephone, at public expense, in his residence quarters, 
which he regarded " as absolutely necessary " for the transaction of 
public business " at other times than when at office headquarters." 
The act of August 23, 1912 (37 Stat., 414), prohibits the use of public 
funds " for telephone service installed in any private residence or 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 619 

private apartment." Applying this statute in a similar case, the 
Comptroller of the Treasury said: 

" Where an officer or employee of the Government has a regular 
office elsewhere than in his private residence, the maintenance in such 
residence, at public expense, of a telephone connected with his regu- 
lar office is prohibited by the act of August 23, 1912, although the part 
of his residence in which the telephone is installed is set apart and 
designated also as an office." (22 Comp. Dec, 502.) 

lield^ that the installation of the telephone service requested at 
public expense was prohibited by the statute. 

(Comp. Treas., Aug. 15, 1916.) 



VEHICLES: Purchase of motorcycles. 

Section 5 of the act of July 16, 1914 (38 Stat., 508), forbids the 
use of any appropriation made by Congress for the " purchase, 
maintenance, repair, or operation of motor-propelled or horse-drawn 
passenger-carrying vehicles for any branch of the public service of 
the United States unless the same is specifically authorized by law." 

Held, that ordinary motorcycles are passenger-carrying vehicles 
within the prohibition of the act. 

(Comp. Treas., Sept. 8, 1916.) 



COURT DECISION. 

(Digest prepared in the office of the Judge Advocate General.) 

HABEAS CORFUS: Authority of State officers to arrest and detain soldiers 
for alleged misconduct while in the performance of military duty. 

Two members of a company of the Ohio National Guard (a cap- 
tain and a sergeant) while in the service of the United States and 
shortly after the President's call of June 18, 1916, were arrested by 
the municipal authorities of the city of Hamilton, Ohio, each on a 
charge of a breach of the peace. The accused each filed a petition for 
habeas corpus in the District Court of the United States, Southern 
District of Ohio. At the habeas corpus hearing the evidence was to 
the effect that the company to which the accused belonged was 
marching to the courthouse square in the city of Hamilton for the 
purpose of participating in a meeting to encourage the enlistment of 
recruits, and that some of the persons assembled along the way 
pressed forward so as to obstruct the marching of the company and 
were pushed back in order that the company might pass. The com- 
plaint against the officer and sergeant grew out of their action in thus 
clearing the way for their company. After their arrest by the civil 
authorities, charges were preferred against the officer and sergeant 
by the military authorities and the court-martial proceedings were 
pending at the time of the habeas corpus hearing. 

The petitioners were discharged from the custody of the State 
authorities under the following rulings deduced from previous cases : 

{a) An officer who, in the performance of what he conceives to be 
his official duties, transcends his authority and invades private rights, 



620 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

is answerable therefor to the Government under whose appointment 
he acts, and to individuals injured by his action. But where there 
is no criminal intentj he is not liable to answer the criminal process 
of another government. The Federal courts have authority in 
habeas corpus proceedings to inquire into the guilt or innocence of 
persons committed on preliminary examination by a State tribunal 
on a criminal charge for acts done in the service of the United States, 
so far as to determine whether the acts were done wantonly and with 
CT'iminal intent; and if not so done, the release must follow. {In re 
Lewis, 83 Fed., 159.) 

(h) The Government of the United States and of a State, though 
exercised within the same territory, occupy different planes, and the 
criminal laws of the one have no application to acts performed under 
the authority of the other in respect of matters solely within its con- 
trol; and an officer or agent of the United States who does an act 
which is within the scope of his authority, as such officer or agent, 
can not be held to answer therefor under the criminal laws of another 
and different government. {In re Fair, 100 Fed,, 149.) 

In the instant case, the court said : 

" These men now before the court were in the employ of the United 
States as soldiers. They were mobilizing. They were in the dis- 
charge of their duty in endeavoring to get recruits. There is no evi- 
dence here of malice, wantonness, or criminal intent. Under the 
I'ulings made in the last three cases mentioned the State is not en- 
titled to priority." {In re Wulzen et al., United States District 
Court, Southern District of Ohio, 1916.) 



BULLETIN 47. 

Bulletin 1 WAR DEPARTMENT, 

No. 47. J Washington, November 16, 1916. 

The following digest of opinions of the Judge Ad^^ocate General 
of the Army for the month of October, 1916, and of certain decisions 
of the Comptroller of the Treasury, is published for the information 
of the service in general. 
[2489781, A. G. O.] 
By order of the Secretary of War : 

H. L. SCOTT, 
Major General, Chief of Staff. 
Official : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ARMY RESERVE: Continuation of gunner's pay on being called to the 
colors. 

The question was presented whether a man furloughed to the re- 
serve and returned to the colors with his battery is entitled to be 
carried as gunner, his qualification as such not having expired by 
limitation under A. R. 1344, which provides for the payment to a 
soldier of gunner's pay for one year after qualification, provided 
that " he continues to be a member of the Field Artillery or reenlists 
in that branch of the service within three months from date of dis- 
charge therefrom." 

Held, that under the circumstances stated the soldier " continues 
to be a member of the Field Artillery," under a fair construction of 
the regulation, and is therefore entitled to gunner's pay. 

(13-111.2, J. A. G., Oct. 21, 1916.) 



ARMY RESERVE: Pay and allowances upon responding to mobilization 
order and being excused. 

In the case of certain members of the Regular Army Reserve who 
reported in compliance with the mobilization order of June 28, 1916, 
and who were thereafter excused from mobilization, because of de- 
pendent families, under War Department instructions dated July 26, 
1916, the question was presented as to their right to pay and allow- 
ances and mobilization pay. Under section 32 of the National De- 

621 



622 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

fense Act reservists are entitled to active pay and allowances when 
" mobilized * * * so long as they remain in active service." 

Held as follows : 

(a) Under the statute a reservist is entitled to active duty pay 
and allowances from the time he reports in person in response to a 
mobilization order until the time he is actually excused. 

(5) As to whether clothing is an allowance to which a reservist 
is entitled under the circumstances stated, depends upon whether he 
actually avails himself of such allowance. Clothing is essentially an 
allowance in kind, furnished for use of enlisted men when they are 
accepted for actual service, and is commuted to a money value merely 
for convenience. Therefore, until a reservist is examined and found 
physically fit for service, and accepted .for service, he is not entitled 
to any clothing allowance. After he is accepted for service he is 
entitled to draw clothing against his clothing allowance, but if he is 
excused before drawing clothing against his allowance he should not 
be credited with any such allowance. 

(c) A reservist who, in obedience to a summons, reports at the 
designated place and is found physically qualified complies with the 
statute and his right to mobilization pay becomes vested and the same 
should be paid. 

(72-200, J. A. G., Oct. 7, 1916.) 



CLAIMS: Private property damaged by soldiers. 

A private truck garden adjacent to a national guard mobilization 
camp was damaged by soldiers to the extent of $175, for which claim 
was made by the owner. 

Held^ that the case came within the 54th Article of War, and that 
it was mandatory upon the commanding officer of the soldiers guilty 
of committing the damage to make reparation to the owner out of 
the pay of the offenders, and that if the individual offenders could 
not be identified stoppage should be made against all of the men 
present. 

(18^20, J. A. G., Oct. 24, 1916.) 



COMMUTATION OF HEAT AND LIGHT: Officers who rent quarters at 
their own expense. 

The Army Appropriation Act for the fiscal year 1917 provides: 

" For commutation of quarters, and of heat and light, to commis- 
sioned officers, members of the Nurse Corps, and enlisted men on 
duty at places where no public quarters are available." 

Held^ that in view of the fact that the appropriation limits the 
payment of commutation of quarters, heat and light to officers only 
when on duty at places where no public quarters are available^ com- 
mutation of heat and light can not legally be paid to officers on duty 
in the field who are provided with tent quarters and who rent other 
quarters at their own expense. 

(58-720, J. A. G., Oct. 2, 1916.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 623 

COMPANY FUND: Not available for increasing the compensation of an 
enlisted grade. 

Authority was requested to pay certain mess sergeants, Coast Ar- 
tillery Corps, $5 per month from the company fund, as additional 
compensation. The pay of mess sergeants is fixed by section 28 of 
the National Defense Act. Paragraph 329, A. R., authorizes the 
payment of additional compensation from the company fund to en- 
listed men for the performance of duty therein specified. 

Held^ that the company fund belongs to the enlisted men as an 
organization, and that it cannot legally be used to augment the 
compensation of any individual for the performance of duties prop- 
erly belonging to his grade, and that paragraph 329, A. R., should 
not be construed as authorizing additional compensation from the 
company fund in any case for the performance of the regular duties 
belonging to a statutory grade; as for instance, the provision for 
additional pay of 25 cents per diem from the company fund to cooks 
was not intended to apply to men holding the regular statutory grade 
of cook, but was intended to apply to ordinary enlisted men detailed 
for duty as cooks. (Dig. Ops., J. A. G., 1912, p. 856.) 

(40-200, J. A. G., Oct. 13, 1916.) 



DENTAL SURGEONS: Advancement in rank, pay and allowances. 

Section 10 of the National Defense Act provides for the appoint- 
ment and commissioning of dental surgeons and for their advance- 
ment thereafter according to length of service and subject to ex- 
amination. 

Held^ that this provision for advancement does not contemplate 
that it shall be by way of a new appointment and commission, as 
only the one office, that of dental surgeon, is created, and that in- 
creases in rank, pay and allowances come by operation of law and 
depend exclusively upon length of service and the passing of re- 
quired examinations. 

Field further^ that dental surgeons are entitled to the benefits of 
section 32 of the Act of February 2, 1901 (31 Stat., 756), providing 
that: 

" When the exigencies of the service of any officer who would be 
entitled to promotion upon examination require him to remain absent 
from any place where an examining board could be convened, the 
President is hereby authorized to promote such officer, subject to ex- 
amination, and the examination shall take place as soon thereafter 
as practicable." 

(64-220, J. A. G., Oct. 6, 1916.) 



DESERTEKS: Reward for apprehension. 

A deserter from a national giuird organization in the service of the 
United States was apprehended a few days after his regiment was 
mustered out, and the question was presented whether a reward for 
his apprehension could legally be paid. Paragraph 63, United States 
Mustering Regulations (1914), provides that the muster-out of the 



624 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

service of the United States of a militia organization discharges 
from the Federal service, on the date of such muster-out, all officers 
and enlisted men who on that date belong to such organizations, " in- 
cluding all absentees except prisoners of war, deserters, * * *." 

Held, that as the soldier in the instant case was not mustered out 
with his regiment, his status at the time of his apprehension was 
that of a deserter from the Army and that a reward was legally 
payable. 

(26-200, J. A. G., Oct. 19, 1916.) 



DETACHED SERVICE LAWS: Not amended by National Defense Act of 
June 3, 1916. 

War Department, Judge Advocate General's Office, 

Octoher U, 1916. 
To The Adjutant General: 

1. First Lieutenant Joseph T. Clement, 37th Infantry, in a 
letter to The Adjutant General of the Army dated October 4, 1916, 
has requested that an approved opinion of this office referred to in an 
indorsement of The Adjutant General's Office dated September 30, 
1916, as holding that so much of the National Defense Act as refers 
to headquarters, supply and machine gun companies is not retro- 
active, be reconsidered. Lieutenant Clement's request is made with 
a view to having his service with the supply company of the 9th 
Infantry from September 9, 1914, to April 5, 1916, counted as duty 
with troops, the supply company of that regiment being then or- 
ganized as prescribed in the Table of Organization, 1914, and being 
substantially the equivalent of the supply company prescribed by the 
National Defense Act. Lieutenant Clement expresses the belief 
that the National Defense Act intends that the provisions relating 
to the Detached Officers' List, found in section 25 of that Act and 
reading — 

'•'-Provided further, That no officer of any of said arms of the 
service shall be permitted to remain on said Detached Officers' List 
for more than forty-five days unless he shall have been actually 
present for duty for at least two years out of the last preceding six 
years with an organization composed of one or more statutory units, 
or the equivalent thereof, of the arm to which he shall belong,'' 
shall be retroactive and operate to count as service with troops any 
service rendered by an officer prior to the passage of that act with 
statutory units or the equivalents of the statutory units established 
by the National Defense Act. 

2. In the opinion referred to by Lieutenant Clement, which was 
rendered under date of June 5, 1916, this office did not pass specifi- 
cally upon the question whether the provisions of the National De- 
fense Act relating to the Detached Officers' List amended the de- 
tached service laws or was retroactive in any respect, but said with 
reference to the organization of headquarters companies and the 
service of adjutants therewith that— 

"As regards the application of the Bill to existing regiments, it is 
self-executing and operates from the date of its approval upon the 
headquarters company whose elements are already in existence and 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 625 

by the Bill are combined into the single organization so denominated. 
Even if a minor element or so be lacking, all substantial elements of 
the new organization are already in existence, and such a slight 
deficiency would not prevent the immediate • operation of the Act. 
A regimental adjutant, therefore, actually present in a duty status 
with respect to such a headquarters company, is, and must be held 
to be, on duty with a company within the meaning of the detached 
service law." 

3. However, the effect of the proviso of section 25 relied upon by 
Lieutenant Clement was discussed by this office in an opinion ren- 
dered September 8, 1916, which has been approved by the Secretary 
of War. In the opinion it was said : 

" It is the opinion of this office that the following proviso in section 
25 of the National Defense Act — 

" ' That no officer of any of said arms of the service shall be per- 
mitted to remain on said Detached Officers' List for more than forty- 
five days unless he shall have been actually present for duty for at 
least two years out of the last preceding six years with an organiza- 
tion composed of one or more statutory units, or the eqidvalent there- 
of, of the arm to which he shall belong,' as its terms indicate, relates 
to eligibility for the Detached Officers' List only, and not to eligibility 
for detached service from troops, and that it does not amend the 
Detached Service Acts of August 24, 1912, and April 27, 1914." 

4. Since it has been determined that the detached service laws have 
not been amended by the National Defense Act, it follows that serv- 
ice of an officer below the grade of major which has not been rendered 
with a troop, company or battery of the arm in which he holds com- 
mission cannot be counted as service with troops within the meaning 
of the detached service law. Therefore, since during the period 
covered by Lieutenant Clement's service with the supply company of 
the 9th Infantry a supply company was not a statutory organization, 
his service therewith cannot be credited as service with troops within 
the meaning of the detached service law. 

W. A. Bethel., 
Acting Judge Advocate General. 

(6-124.21, J. A. G., Oct. 14, 1916.) 



DETACHED SERVICE: Officer on duty with Philippine Scouts. 

The question was presented whether an officer in the grade of cap- 
tain who was detailed as major of Philippine Scouts from August 16, 
1911, to June 26, 1915, could be credited with duty with troops for 
that period. 

Held., that as a major of Philippine Scouts the officer commanded 
a battalion of scouts and was not, therefore, on duty " with a troop, 
battery or company of that branch of the Army " in which he held 
a commission, as required by the detached service Act of August 24, 
1912 (37 Stat., 571), the said act of 1912 not having been amended by 
section 25 of the National Defense Act. 

(6-245, J. A. G., Oct. 10, 1916.) 

93668°— 17 40 



626 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ENLISTED MEN: Examinations for commission. 

A former officer of the Philippine Scouts, 29 years of age, inquired 
whether he would be eligible, upon enlisting in the Regular Army, to 
take the examination for a commission under that portion of section 
24 of the National Defense Act which provides that: 

" Enlisted men of the Regular Army who have completed one 
year's service with an organization may become candidates for va- 
cancies in the grade of second lieutenant created or caused by the 
increases due to the operation of this Act." 

Held^ that the service as an officer of the Philippine Scouts would 
confer eligibility within the meaning of the statute quoted, upon the 
reenlistment of the man. 

(6-250, J. A. G., Oct. 10, 1916.) 



ENLISTMENTS: As to qualifications of Indians. 

The question was presented whether an Indian who was reported 
as " qualified except educational test " could legally be enlisted in 
the Regular Army. Section 2 of the Act of October 1, 1894 (28 Stat., 
216), as amended by section 4 of the Act of March 2, 1899 (30 Stat., 
978), provides that: 

" In time of peace no person (except an Indian) who is not a citi- 
zen of the United States, or who has not made legal declaration of his 
intention to become a citizen of the United States, or who cannot 
speak, read, and write the English language, or who is over thirty- 
five years of age, shall be enlisted for the first enlistment in the 
Army." 

Beld^ following the settled administrative construction of the 
statute that the exception as to Indians occuring in the clause relat- 
ing to citizenship has no reference to the subsequent clauses prescrib- 
ing educational qualifications and age limitation, and that therefore 
the educational qualifications for the first enlistment prescribed in 
the statute are requisite in respect of all persons enlisting in time of 
peace, including Indians. 

(13-111.2, J. A. G., Oct. 21, 1916.) 



NATIONAL GrTJARB: After call for Federal service — powers of State 
authorities. 

The question was presented whether the State authorities may 
legally transfer enlisted men from a militia or national guard or- 
ganization after such organization has been selected for Federal 
service by the Governor of the State pursuant to the call of the 
President. 

Held, that after the President's call is transmitted to a militia or 
national guard organization there is established a relation between 
the United States and all members of such organization and a duty 
under Federal law on the part of such members to appear for muster, 
and that State authorities could not interpose to break or impair 
that relation or to relieve the members of their duty under the statute. 

(58-100, J. A. G., Oct. 3, 1916.) 



DIGEST OF OPINION'S OF THE JUDGE ADVOCATE GENERAL. 627 

NATIONAL GUARD: Age qualifications for enlistment. 

Questions were submitted and answered as follows : 

(a) May the Department, on the theory of requiring conformity 
in such respects to the Regular Army, prescribe 35 as the maximum 
age for enlistment in the National Guard? Answer: No. True, 
"the qualifications for enlistment shall be the same as those pre- 
scribed for admission to the Regular Army" (Sec. 79), but this gen- 
eral provision can have no reference to a qualification elsewhere spe- 
cifically prescribed, as is the age limit. The National Guard age 
qualification is made the subject of specific consideration and pro- 
vision in sections 57 and 58 of the National Defense Act, and differs 
from that prescribed for the Regular Army. 

(b) Must an enlisted man be discharged from service on reaching 
45, or m:7 he continue to serve out his enlistment? and 

(c) If he may serve out such enlistment, may he thereupon be re- 
enlisted? Answer: My opinion is that he may serve out his enlist- 
ment and may thereupon be reenlisted, if otherwise qualified. The 
proviso to section 69 of the National Defense Act puts the question 
beyond doubt wherein it provides — 

" That in the National Guard the privilege of continuing in active 
service during the whole of an enlistment period and of reenlisting 
in said service shall not be denied by reason of anything contained 
in this Act." 

This privilege to continue in active service for the whole enlist- 
ment period is, by the terms of the proviso, as available in an enlist- 
ment period containing the 45th year as in any other enlistment. See 
also section 57, same act, prescribing the composition of the Militia, 
out of which comes the National Guard (Sec. 58), wherein said sec- 
tion 57 provides that the Militia is composed of those who are more 
than 18 years of age and, except as hereinafter provided^ not more 
than 45 years of age. 

(58-051, J. A. G., Oct. 23, 1916.) 



NATIONAL GUARD: As to efeect of taking- Federal oath. 

Upon the questions {a) whether officers who have taken the oath 
prescribed by section 73 of the National Defense Act but who belong 
to organizations the enlisted men of which have not taken the oath pre- 
scribed by section 70, are officers of the National Guard within the 
meaning of that Act; and (5) what effect will the taking of the oath 
prescribed in section 70 of the National Defense Act by an enlisted 
man of the Organized Militia of the State have upon his enlistment 
in the Organized Militia under the law of his State? 

Held^ as to {a) that an officer of the Organized Militia who takes 
the oath prescribed by section 73 of the National Defense Act be- 
comes an officer of the National Guard under the National Defense 
Act, that there may be a recognition of an individual member of the 
National Guard, officer or enlisted man, separate and apart from the 
recognition of the organization to which he belongs, that while under 
the provisions of section 110 pay can only accrue to officers and 
enlisted men belonging to recognized organizations, the recognition 
of an officer or enlisted man separately may have substantial value, 



628 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

in that he thereby becomes qualified for appointment to office in 
the National Guard under section 74, and if an officer between the 
ages of 21 and 27 years becomes eligible for appointment as second 
lieutenant in the Eegular Army under section 24; and as to (h) that 
the taking of the oath prescribed by section 70 by an enlisted man 
of the Organized Militia transforms the enlisted man of the Organ- 
ized Militia into a member of the National Guard and substitutes 
a new enlistment contract for his former State enlistment contract. 
(58-057, J. A. G., Oct. 12, 1916.) 



NATION Ali GUARD: As to retention of officer in Federal service after 
muster-out of his organization. 

In the case of a National Guard officer who was on sick leave 
request was made for authority to retain him in the Federal service 
after the muster-out of his organization, until his complete recovery 
from his ailment. 

Held, that while the retention in the Federal service of a particular 
National Guard officer may be authorized for a short period after 
the muster-out of his organization, to enable him to perform any 
duty pertaining to the completion of the records of his organization, 
or for other duty, the retention of such an officer in the Federal 
service after the muster-out of his organization solely for the purpose 
of permitting him to draw Federal pay would not be legal. 

(68-160, J. A. G., Oct. 6, 1916.) 



NATIONAL GUARD: Furlough of enlisted man to the reserve. 

An enlisted man of the National Guard upon the completion of his 
three-year active enlistment period desired to remain in the active 
service for one year longer and then be furloughed to the reserve. 
Section 69 of the National Defense Act provides: 

"That in the National Guard the privilege of continuing in active 
service during the whole of an enlistment period and of reenlisting 
in said service shall not be denied by reason of anything contained 
in this Act." 

Held, that the sense of the above statutory provision is that an 
enlisted man of the National Guard who elects to remain in service 
instead of being furloughed to the National Guard Reserve at the 
expiration of the first three-year period of his enlistment must make 
the election as to the whole of his enlistment period, and that the 
soldier in the instant case could not elect to remain in the active 
service only one year of the remaining three years of his enlistment 
period. 

(58-214, J. A. G., Oct. 16, 1916.) 



NATIONAL GUARD: Restoration of reservist to active duty. 

The question was presented whether a national guardsman who 
passed to the National Guard Reserve while his organization was in 
the actual service of the United States could, upon his own applica- 



DK4EST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 629 

tion, be restored to active duty with his regiment. Section 78 of the 
National Defense Act provides that: 

"A National Guard Reserve shall be organized in each State, Ter- 
ritory, and the District of Columbia, and shall consist of such organi- 
zations, officers, and enlisted men as the President may prescribe, or 
members thereof may be a&'signed as reserves to an active organiza- 
tion of the National Guard." 

Held., that until an organization thereof is prescribed by the Presi- 
dent the National Guard Reserve remains an unorganized force, 
and that therefore when a soldier passes to that reserve he becomes 
one of a class of militia which has not been called into the service 
of the United States, and there is no legal authority for accepting 
him into the Federal service until his class is called into the service 
of the United States pursuant to law. 

(68-100, J. A. G., Oct. 2, 1916.) 



NATIONAL GUABD: Transportation of private mounts of officers mus- 
tered out. 

Held., that upon the muster out of the Federal service of an officer 
of the National Guard at a State mobilization camp there is no 
authority for the transportation of his private mounts at public 
expense from such camp to the officer's home. 

(94-231, J. A. G., Oct. 28, 1916.) 



PUBLIC PROPERTY: Sales to attendants at training camps. 

Section 54 of the National Defense Act providing for the mainte- 
nance of military training camps authorizes the Secretary of War — 
" to sell to persons receiving instruction at said camps, for cash and 
at cost price plus ten per centum, quartermaster and ordnance prop- 
erty," required for their proper equipment. 

Held.^ that such sales are authorized only to persons v^hile they are 
in actual attendance at the camps "receiving instruction" thereat, 
and that there is no authority to fill orders for such property received 
from former attendants. 

(80-131, J. A. G., Oct. 12, 1916.) 



TRANSPORTATION: Excess passenger baggage. 

An officer having been directed by the War Department to proceed 
at once from San Diego, Cal., to Fort Sam Houston, Texas, for duty 
in the field applied to the local quartermaster for the transportation 
of his field allowance of baggage. The quartermaster issued a trans- 
portation request for its shipment as excess passenger baggage at an 
expense of $13.18. Inasmuch as this method of shipment was un- 
authorized and the cost not payable from public funds (A, E., 1122, 
1123, and 20 Comp. Dec, 182), the question was presented whether 
the officer whose baggage was thus transported or the quartermaster 
who furnished the transportation request should be required to pay 
the cost of the shipment. 

Held., that under the provisions of the regulations mentioned the 
duty of the quartermaster was clear; that the other officer was 



630 DIGEST OF OPIinONS OF THE JUDGE ADVOCATE GENERAL. 

entitled to have his baggage shipped without expense to himself, 
and that as the quartermaster failed to make the shipment in accord- 
ance with the regulations the latter should be required to pay the cost 
of the shipment. 

(94-232, J. A. G., Oct. 17, 1916.) 



DECISIONS or THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in tlie office of tlie Judge Advocate General.) 
ENLISTED MEN: Absence due to misconduct. 

In a recent case involving the absence of an enlisted man of the 
Army Schools Detachment, United States Military Academy, on ac- 
count of disease resulting from his own misconduct, the question was 
raised whether the Act of April 27, 1914 (38 Stat., 363), applied to 
enlistments in the Military Academy detachment entered into prior 
to the passage of that act. 

Held^ that if in the instant case the soldier's absence from duty 
was on account of disease resulting from his own misconduct, con- 
tracted after the date of the above-mentioned act, pay was prop- 
erly deducted and should not be refunded. 

Note. — In explaining and amplifying former decisions the Comp- 
troller said: 

''In the decision of January 30, 1913 (19 Comp. Dec, 483), con- 
struing the act of August 24, 1912, it was held that if a soldier is 
absent from duty on accomit of disease resulting from his own mis- 
conduct contracted in the enlistment in which he was then serving, 
but prior to the passage of the act of August 24, 1912, no deduction 
of pay should be made, but if the absence was on account of a dis- 
ease contracted in such enlistment after August 24, 1912, the deduc- 
tion should be made. Such has been understood in this office to be 
the effect of the decision of January 30, 1913. (See also 20 Comp. 
Dec, 348.) 

" The act of August 24, 1912, did not apply to the military acad- 
emy detachment because said detachment was not paid from the 
Army appropriation for pay of the Army. The act of April 27, 
1914, is applicable to such organization. As the act of April 27, 
1914, is the same in all material respects as the act of August 24, 
1912, the principle of the decision of January 30, 1913, applies 
equally under the act of April 27, 1914." 

(Comp. Treas., Oct. 2, 1916.) 



CLAIMS: Loss or damage to personal baggage. 

Held., that where the evidence submitted to the accounting officers 
of the Treasury in support of a claim for reimbursement under, and 
subject to the limitations of, the Act of March 3, 1885 (as extended 
by the Act of March 4, 1915), for personal baggage of an officer or 
enlisted man of the Army lost or damaged in changing station, estab- 
lishes that such loss or damage was incurred in transit and through 
no fault or negligence of the owner, such reimbursement is author- 
ized under that act. 

(Comp. Treas., Sept. 29, 1916.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 631 

CIVILIAN EMPLOYEES: Expenses for meals at home station. 

Certain civilian employees of the Engineer Corps claimed reim- 
bursement of the amount expended for meals at their home station 
when it was impracticable or inconvenient for them to go to their 
regular eating places. 

Held^ that it was an incident or condition of service in which the 
employees were engaged that they could not at all times be near their 
regular boarding places at meal time, and that reimbursement for 
such personal expenses as meals would be in the nature of additional 
compensation and as such prohibited under section 1765, Revised 
Statutes. 

(Comp. Treas., Aug. 11, 1916.) 



COMMUTATION OF QUARTEIIS: Enlisted man on temporary duty away 
from his regular station. 

ENLISTED MEN: Absence due to misconduct. 

A quartermaster sergeant, whose permanent station was at the 
office of the Depot Quartermaster, Seattle, Wash., was sent to Fort 
Worden, Wash., for temporary duty where he remained on duty 
from July 12 to August 22, 1916. While on such temporary duty 
he was attached to the Quartermaster Corps detachment at Fort 
Worden for rations and was quartered with the detachment in the 
detachment quarters, which were in the corral over the wagon shed. 
During such temporary absence he continued to rent quarters at his 
regular station and claimed the right to receive commutation 
therefor. 

Held, that, it appearing that the soldier was furnished with quar- 
ters in kind with the detachment to which he was attached while on 
temporary duty and that the quarters so furnished were of the same 
kind or character as the other members of the detachment received, 
he was not entitled to quarters or commutation of quarters else- 
where, and that his claim could not legally be allowed. 

(Comp. Treas., Oct. 19, 1916.) 



CONTINUOUS SEBVICE PAY: Enlisted men. 

Held, that an enlisted man who is discharged from the Regular 
Army to accept a commission in the officers' reserve corps of the 
Regular Army, and who remains in service in said corps more than 
three months loses his right to credit for continuous-service pay as 
an enlisted man of the Regular Army. 

(Comp. Treas., Sept. 28, 1916.) 



MILEAGE: Retired officer serving as witness. 

Held, that a retired officer of the Army who serves as a witness be- 
fore a court-martial is entitled, for travel performed in going to and 
returning from the court, only to the mileage provided for civilian 
witnesses in such cases, and not to the mileage provided for officers 
of the Army traveling under competent orders, without troops, al- 
though he was expressly ordered by the Secretary of War to appear 
as a witness before the court-martial. 

(Comp. Treas., Sept. 28, 1916.) 



632 DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 

NATIONAL GUARD: Payment of recruits between date of enlistment and 
date of muster-in or rejection. 

In the case of National Guard recruits for the Federal service en- 
listed after the President's call of June 18, 1916, the question was 
presented whether men recruited for the purpose of bringing the 
organizations up to the rrhOximuTn strength were entitled to be paid 
from the date of their enlistment to the date of their muster-in, or to 
the date of their rejection after physical examination. As to enlist- 
ments to bring the organizations up to the required miniiTVwm 
strength for Federal service, the Army Appropriation Act of August 
29, 1916 (Public No. 242, p. 6), provides for payment. 

Held^ that in the case of enlisted men recruited for the purpose of 
bringing a National Guard organization up to the maximum strength, 
who are mustered in, payment may be made from the date of enlist- 
ment to the date of muster-in, but that in the case of those similarly 
enlisted who are rejected, after physical examination, there is no 
authority for their payment from Federal funds for the time between 
the date of enlistment and the date of rejection. 

(Comp. Treas., Sept. 30, 1916.) 



BULLETIN 57. 

Bulletin 1 WAR DEPARTMENT, 

No. 57. J Washington, December 22, 1916. 

The following digest of the opinions of the Judge Advocate Gen- 
eral of the Army for the month of November, 1916, and of certain 
decisions of the Comptroller of the Treasury, is published for the in- 
formation of the service in general. 
[2506586, A. G. O.] 
By order or the Secretary of War : 

H. L. SCOTT, 
Major General, Chief of Staff. 
OmciAL : 

H. P. McCain, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

APPOINTMENT OF OFFICERS: Age limitations for examination and ap- 
pointment of civilians. 

The law governing the appointment of second lieutenants of En- 
gineers from civil life is found in section 24, National Defense Act, 
and section 5 of the Act of February 27, 1911 (36 Stat, 957), which 
requires that — 

" To become eligible for examination and appointment, a civilian 
candidate for appointment as second lieutenant must be * * * 
between the ages of 21 and 29 * * *." 

Held, that both the examination and the appointment must come 
within the age limits specified by the statute, and that an applicant 
w4io failed in an examination w^as not eligible for a reexamination 
and appointment after he had passed the maximum age limit. 

(64-210.2, J. A. G., Nov. 17, 1916.) 



APPOINTMENT OF OFFICERS: Competitive examination of enlisted man 
delayed through error of military authorities. 

An enlisted man was prepared for and entitled to compete in an 
examination for a commission held in August, 1916, but was pre- 
vented from taking that examination through an error of the military 
authorities in transmitting his notice to the wrong address, resulting 
in his having to wait until October for his examination. 

Held, that upon his being found qualified in the latter examina- 
tion, the soldier was entitled to be rated with the candidates who were 
found qualified in the August examination, and was entitled to place 
in line for appointment under section 24, National Defense Act, 
ahead of those candidates qualifying in the October examination — 
the delay in his examination being due to no fault on his part. 

^64-212, J. A. G., Nov. 10, 1916.) 

633 



634 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

APPOINTMENT OF OFFICERS: Examinations for commission. 

An officer of the Philippine Scouts competed in an examination 
given for enlisted men for commissions. He had not completed one 
year's service in the Scouts, but relied upon his service of four years 
in the Marine Corps as qualifying him as a candidate for a commis- 
sion under section 24 of the National Defense Act, which provides 
that officers of the Philippine Scouts shall be eligible for commission 
under the same conditions as enlisted men, and further declares 
that— 

" Enlisted men of the Regular Army who have completed one 
year's service with an organization may become candidates for va- 
cancies in the grade of second lieutenant created or caused by the in- 
creases due to the operation of this Act." 

Held, that the statute contemplates one year's service in the Army 
and that the officer of the Philippine Scouts was not qualified by 
reason of his service in the Marine Corps. 
. (64-213.5, J. A. G., Nov. 8, 1916.) 



ENLISTED MEN: Clothing allowance. 

The commanding officer of a National Guard organization called 
attention to a case in which an enlisted man had been discharged on 
account of disability after only ten days' service. There had been 
issued to him $30 worth of clothing, and he had no other clothes nor 
any money. The pay due him was only $5. The officer inquired: 
" What must the officer who is responsible for the clothing do in 
such a case ? " 

Held., that the title to clothing issued to enlisted men either in 
the Regular Army or in the National Guard remains in the United 
States, and' that in the instant case the clothing issued against the 
soldier's initial allowance should be retained in the possession of the 
Government by the responsible officer, except only such clothing as 
would be necessary for the soldier to wear home. 

(72-420.2, J. A. G., Nov. 11, 1916.) 



DETACHED OFFICERS' LIST: Details therefrom. 

The second proviso of section 25, National Defense Act, provides 
that no officer shall be permitted to remain on the Detached Officers' 
List who has not been on duty with troops as therein prescribed, and 
further declares that, " except as before prescribed in this proviso, all 
officers who shall have been assigned to said list shall remain thereon 
for not less than four years from the respective dates of their assign- 
ment thereto, unless in the meantime they shall have been separated 
entirely from the Army, or shajl have been promoted or appointed to 
higher offices, or shall have been retired from active service." 

Held, that while an officer's name must be removed from the De- 
tached Officers' List when he has not had certain service with troops, 
it cannot otherwise be removed from that list (except on account of 
retirement, separation from service, etc.,) until it has been thereon 
for at least four years; therefore an officer's name may not be re- 
moved from the Detached Officers' List for the purpose of detailing 



DIGEST OP OPINIONS OF THE JUDGfe ADVOCATE GENERAL. 635 

him to the General Staff Corps for the reason that while officers may, 
pursuant to various provisions of law, be transferred from one posi- 
tion to another, as from line to staff and vice versa, or from line to 
Detached Officers' List and vice versa, it is clear that one officer 
may not hold two positions at the same time, thus: An officer may 
not occupy a position in the line and one in the staff at the same 
time; neither may he occupy a position on the Detached Officers' 
List and one in the staff or line at the same time. 
(6-245, J. A. G., Nov. 6, 1916.) 



ENLISTED MEN: Discharg-es for convenience of the Government. 

In the case of a soldier discharged from an enlistment in which he 
had served more than two years to enable him to accept a commission, 
and who reenlisted within three months, the question of what enlist- 
ment period he was then serving in turned upon the point whether 
the discharge was for the convenience of the Government. (Act of 
May 11, 1908, 35 Stat, 109.) 

Held^ that the discharge of an enlisted man to enable him to ac- 
cept a commission is a discharge for the convenience of the Govern- 
ment. 

(34-225, J. A. G., Nov. 17, 1916.) 



ENLISTED MEN: Pay of private, Medical Department. 

A private of the Medical Department serving an enlistment en- 
tered into prior to the passage of the National Defense Act, and hence 
entitled to the old rate of $16 per month, was promoted to private, 
first class, but was later reduced to the grade of private. The ques- 
tion was presented whether he should be paid $15 a month, the new 
rate for the grade of private. Medical Department (Sec. 28, National 
Defense Act), or whether he was entitled to resume the $16 rate. 

Held, that the saving clause at the end of section 28, National De- 
fense Act, operates to continue the pay of the grade of private, Hos- 
pital Corps, for the benefit of enlisted men during the remainder of 
their enlistments existing June 3, 1916, and that, therefore, the 
soldier, upon his reduction to the grade of private, was entitled to 
the old rate of $16 per month. 

(72-200, J. A. G., Nov. 14, 1916.) 



NATIONAL GUARD: Grade and pay of chaplains. 

Section 1 of the Act of April 21, 1904 (33 Stat., 226), provides 
that " all persons who may hereafter be appointed as chaplains shall 
have the grade, pay, and allowances of first lieutenant, mounted, 
until they shall have completed seven years of service," and further 
that " chaplains shall have the grade, pay, and allowance of captain, 
mounted, after they shall have completeQ seven years of service." 

Held, that chaplains of the National Guard having had seven 
years of continuous service as chaplains immediately prior to being 



636 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

mustered into the service of the United States or who may complete 
seven years of service after being mustered into the Federal service, 
are entitled to the pay and allowances of captain by virtue of their 
service, and no act of the appointing power is required. 

Held fy/rther^ that chaplains of the National Guard may be recog- 
nized as chaplains in the grade of major after they have been ap- 
pointed to that grade by the governors of their respective states after 
having had the requisite service for ten years in the grade of cap- 
tain — but not otherwise. 

(58-700, J. A. G., Nov. 2, 1916.) 



NATIONAL GUARD: Pay of organizations below the minimum strength 
when called into the Federal service. 

In a National Guard Regiment that was embraced in the Presi- 
dent's call for Federal service there were a number of companies 
from whom the War Department had withdrawn recognition because 
they were not maintained up to the required standard of strength. 
On the question whether the members of such companies responding 
to the President's call were entitled to pay from the time they re- 
ported at their company rendezvous, 

Ileld^ that the withdrawal or withholding of the Department's 
recognition of a Militia organization operates to deprive such or- 
ganization of the right to participate in the Federal appropriations 
but does not operate to discharge the members of such organization 
from their obligation under their oath and contract of enlistment 
to respond to the President's call for Federal service, and that they 
are entitled to Federal pay as provided by statute from the time they 
report at their company rendezvous; and this applies also to those 
who may later, upon examination, be found physically unfit for 
service and are discharged. 

(58-201, J. A. G., Nov. 29, 1916.) 



NATIONAL GUARD: Transportation of officers' authorized private mounts. 

National Guard officers called into the active service of the United 
States authorized to be mounted are entitled to have their authorized 
private mounts transported from the home rendezvous to the mobili- 
zation camp at public expense, the cost being payable from the 
appropriation for the transportation of the Army and its supplies. 

(94-061, J. A. G., Nov. 23, 1916.) 

Upon the muster-out of the Federal service of such officers the 
transportation of their horses from the place of muster-out to their 
home rendezvous is not authorized, this conclusion being based upon 
the provision of A. R. 1098 against the shipment of an officer's 
mounts after his separation from the active service. 

(94-061, J. A. G., Oct. 28, 1916.) 



OFFICERS: Relative rank. 



Section 1219, Revised Statutes, provides that in fixing relative 
rank between officers of the same grade and date of appointment 
and commission, the time which each may have actually served as a 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 637 

commissioned officer of the United States, whether continuously or 
at different periods, shall be taken into account ; and section 24, Na- 
tional Defense Act, contains the provision that officers appointed to 
original vacancies in the grade of second lieutenant created or caused 
by that Act, " shall take lineal and relative rank according to dates 
of appointment, and the lineal and relative rank of second lieutenants 
appointed on the same date shall be determined under such regula- 
tions as the Secretary of War may prescribe, * * * " 

Tleld^ that the former statute was not modified by the latter pro- 
vision and that the persons appointed provisional second lieutenants 
to fill vacancies created or caused by the Act of June 3, 1916, and 
who have had commissioned service in the National Guard in the 
service of the United States or in the Philippine Scouts are entitled, 
under section 1219, Revised Statutes, to have the time so served as 
commissioned officers taken into account in fixing their relative and 
lineal rank. 

Held further^ that the benefit of former commissioned service un- 
der section 1219 of the Revised Statutes is effective only within the 
class from which the appointee is selected, since section 24 creates 
an order of preference in which appointments are made which is not 
disturbed by the provisions of section 1219, Rev. Stat. 

(64r-200, J. A. G., Nov. 16, 1916.) 



OFFICERS' RESERVE CORPS: Appointment of members on examining 
boards. 

In the rules prescribed for examinations for appointments in the 
Officers' Reserve Corps (G. O. 32, W. D., 1916, p. 10) it is directed, 
with reference to the composition of examining boards, that — 

" The members of these boards will be appointed from the Regular 
Army or from the Regular Army and the Officers' Reserve Corps." 

Held^ that the provision for the appointment of members of the 
Officers' Reserve Corps on such boards applies only to officers who 
have been called into the active service, as there is no authority of 
law for so utilizing the services of members of the Officers' Reserve 
Corps who have not been called into active service for other pur- 
poses in accordance with law. 

(76-030, J. A. G., Nov. 14, 1916.) 



PUBLIC PROPERTY: Use of for private purposes. 

The master of a quartermaster steamer, by permission of the local 
post commander, employed the vessel for commercial use as a tug, 
charging for the services of towing commercial vessels on twelve 
occasions enough to cover expenses for coal, oil, etc. Gratuities also 
were accepted aggregating $605, and " equitably divided among the 
members of the crew." 

Held., that in the absence of a real emergency, the commercial use 
of the tug was improper and in violation of law and regulations 
and the officer was subject to censure; and further that if the occa- 
sion on which the use of the vessel was permitted by him could be 
regarded as one of emergency, " he would be censurable for allowing 



638 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

this use to continue for a period of over two months without report- 
ing the facts to his superior officers." 

Held further^ that the officer should be required to deposit to the 
credit of miscellaneous receipts the funds received by the master for 
these services and divided among the crew, he being allowed to col- 
lect from the crew, as far as practicable, the amounts they respec- 
tively received for the services rendered by the steamer. 

(78-100, J. A. G., Nov. 15, 1916.) 



SEAMEN: General laws applicable to members of Army transport crews. 

Section 11 of the Act of March 4, 1915 (38 Stat., 1168), provides 
that " it shall be lawful for any seaman to stipulate in his shipping 
agreement for an allotment of any portion of the wages he may earn 
to his grandparents, parents, wife, sister, or children.'' 

Tleld^ that it bein^ settled that members of the crew of an Army 
transport, who are civilian employees, are subject to the restrictions 
and entitled to the benefits of the same laws as merchant seamen, it 
follows that they are entitled to the benefits of the above mentioned 
Act. 

(94-124, J. A. G., Nov. 21, 1916.) 



TRANSPORTATION: Officers' change of station bag-gage allowance. 

A first lieutenant whose regular station was at San Francisco was 
sent to the border for duty and furnished 25% of his baggage trans- 
portation allowance. He was subsequently promoted to captain and 
Assigned to a new regiment regularly stationed at El Paso. 

Held^ that the assignment of the officer to the new regiment oper- 
ated to change his permanent station from San Francisco to El Paso, 
and that he became entitled to the permanent change of station 
allowance of baggage of the grade held by him on the date of his 
actual change to the new command, subject to a deduction of the 
number of pounds already shipped under the 25% allowance to 
officers on temporary duty. 

(94-232, J. A. G., Nov. 15, 1916.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

APPROPRIATIONS: Expenses for abstract of title. 

The expenses incurred in the preparation of an abstract of title to 
land about to be acquired by the United States, when such abstract 
was procured for use in contemplated purchase of the land, and not 
for use in condemnation proceedings, should be paid from the ap- 
propriation used for the purchase of the land, regardless of the fact 
that said abstract may ultimately be used in condemnation pro- 
ceedings. 

(Comp. Treas., Oct. 28, 1916.) 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 639 

TRANSPORTATION: Charge for special services rendered by transporta- 
tion company. 

In connection with the transportation by the Government of horses 
from Washington, D. C., to St. Louis, Mo., the raih^oad company put 
in a bill for $3 for feed, unloading, loading, and switching at St. 
Louis, submitting with the bill an order of the attendant accom- 
panying the horses requiring such service. 

Held., that the service having been rendered in accordance with 
the orders of the attendant, the charges should be paid. 

(Comp, Treas., Dec. 1, 1916.) 



BULLETIN 3. 

Bui.letin1 WAE department, 

No. 3. J Washington, January 19, 1917. 

The following digest of opinions of the Judge Advocate General 
of the Army for the month of December, 1916, and of certain 
decisions of the Comptroller of the Treasury, is published for the 
information of the service in general. 
[2520529, A. G. O.] 
By order of the Secretary or War: 

H. L. SCOTT, 
Major General^ Chief of Staff. 
Officiai. : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CONFINEMENT: Time awaiting trial and result, for desertion, not 
counted on restoration towards completion of enlistment. 

The 48th Article of War provides that : 

" Every soldier who deserts the service of the United States shall 
be liable to serve for such period as shall, with the time he may have 
served previous to his desertion, amount to the full term of his 
enlistment; * * *" 

The matter of the completion of an enlistment entered into prior 
to April 27, 1914, in the case of a convicted deserter restored to duty, 
is governed by the 48th Article of War, as interpreted by Paragraph 
130, Army Kegulations, which means that the time spent in confine- 
ment awaiting trial and serving sentence for desertion will not count 
toward the completion of the enlistment. This construction is in 
line with the general provisions contained in the Act of April 27, 
1914 (38 Stat., 353), requiring that an enlistment (entered into on 
and after that date) shall not be regarded as complete until the sol- 
dier shall have made good any time in excess of one day lost by 
unauthorized absence, or on account of disease resulting from his 
own intemperate use of drugs or alcoholic liquors or other miscon- 
duct, or while in confnement awaiting trial or disposition of his case 
if the trial restdts in e&n/viction, or while in confinement under sen^ 

(34-052, J. A. G., Dec. 27, 1916.) 



DETACHED SERVICE: Officer on duty as Squadron Adjutant. 

Having reference to his detached service status, an officer in- 
quired " whether or not, under the National Defense Act of June 3, 
1916, a Squadron Adjutant is to be given duty status while holding 
640 



DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 641 

that oiRce, presuming he is present for duty with his regiment and 
exercises the functions of his office." 

Held^ that the detached service laws were not amended or qualified 
by the National Defense Act (Bui. 47, W. D., 1916, p. 6), and that, 
therefore, answer to the question is found in the Department's deci- 
sion of June 15, 1916 (Bui. 26, W. D., 1915, p. 3), that duty as a 
Squadron Adjutant is a detail on detached service within the mean- 
ing of the Act of August 24, 1912. 

(6-124.23, J. A. G., Dec. 18, 1916.) 



DETACHED SERVICE: Regimental Adjutants, Field Artillery. 

The question was presented whether a regimental adjutant of Field 
Artillery is to be deemed present for duty with a troop, battery, or 
company, within the meaning of the Detached Service Act of Aug. 
24, 1912. 

Ileld^ as follows: As to a regiment of infantry, it has been held 
that the adjutant thereof is on duty " with a troop, battery or com- 
pany " within the purview of the detached service law, because he 
is in command of the headquarters company (Bui. 39, W. D., 1916, 
p. 12). While the National Defense Act provides that a regimental 
adjutant of Infantry or Cavaliy shall command the headquarters 
company or headquarters troop, as the case may be, this is not so as to 
the adjutant of a Field Artillery regiment. He does not command 
the headquarters company, the supply company, nor any battery in 
the regiment, other captains having been provided as component 
parts of those organizations for that purpose. (Sec. 19, National 
Defense Act.) A regimental adjutant of Field Artillei*y is, there- 
fore, an additional officer, and he is not, so long as he occupies his 
normal status as adjutant, on duty with a troop, battery, or company, 
within the meaning of the detached service act of 1912. 

(6-124.23, J. A. G., Dec. 18, 1916.) 



EIGHT-HOUR LAW: Purchase of flying machines. 

On complaint that a manufacturing company, in the execution of 
their contract with the United States Government for flying ma- 
chines, required of their mechanics, in violation of the eight-hour 
law, more than eight hours' labor per day. 

Held, that as the Eight-Hour Act of June 19, 1912 (37 Stat., 137), 
expressly excepts from its operation " contracts * * * for such 
materials or articles as may usually be bought in open market, except 
armor and armor plate, whether made to conform to particular 
specifications or not," etc., and as the contract in question to cover 
purchase is an agreement to deliver completed articles of manufac- 
turers' make, rather than an agreement for their construction, it 
being a matter of public knowledge that flying machines are articles 
which are manufactured for sale and may be purchased in open 
market ; a contract for such machines, although requiring the partic- 
ular machines to conform in certain particulars to Signal Coi-ps 
specifications, is not within the operation of the eigth-hour law. 

(32-313, J. A. G., Dec. 29, 1916.) 
93668°— 17 41 



642 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ENLISTED MEN": Detail of noncommissioned officers for service in the 
National Guard. 

Section 36 of the National Defense Act authorizes the detail of not 
to exceed 1,000 sergeants as instructors of the National Guard, and 
100 sergeants as instructors of organizations at the U. S. Discipli- 
nary Barracks, and provides that they " shall be additional to the 
sergeants authorized by this Act for the corps, companies, troops, 
and detachments from which they may be detailed." 

Held, that the statute only authorizes additional sergeants, and that 
while it may be advisable and permissible at times to detail sergeants, 
first class, to duty as instructors (Bui. 28, W. D., 1916, p. 9), such an 
assignment can not operate to increase the authorized number of 
sergeants, first class, which is fixed by law. 

(6-156, J. A. G., Dec. 20, 1916.) 



ENLISTED MEN: Engaging in civil employments. 

In the case of an enlisted man who was granted a furlough under 
authority of regulations to extend to the date of his retirement, com- 
plaint was made that during such period of furlough the soldier was 
engaging in business, in violation of Section 35 of the National De- 
fense Act. 

Held, that while an enlisted man on leave of absence or ordinary 
furlough is unquestionably to be deemed in active service within the 
meaning of this term as used in the statute mentioned, it would go 
beyond the primary purpose of the law to apply it to a case like 
this where the furlough has been granted to an enlisted man under 
authority of regulations to extend to the date of his retirement, it 
not being within the contemplation of the authorties granting the 
furlough that he will ever resume active duty, and that, therefore, 
in such cases the soldier may accept employment or engage in busi- 
ness without reference to the provisions of Section 35 of the National 
Defense Act. 

(6-153.4, J. A. G., Dec. 4, 1916.) 



ENLISTED MEN: Pay for time spent in military confinement subject to 
jurisdiction of civil authorities. 

Under Executive Order No. 50, Philippine Islands, August 7, 1912, 
an enlisted man, having been arrested by the civil authorities, was 
turned over to the military authorities for confinement, subject to 
the disposition of his case in the civil courts. 

Held, that the soldier was not entitled to pay for the time he was 
held in confinement subject to the jurisdiction of the civil authorities, 
his status with respect to his availability for military service during 
such period of confinement being substantially the same as if he had 
been in the actual custody of the civil authorities, and governed by 
A. R. 1371. 

(6-250, J. A. G., Dec. 4, 1916.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 643 

MEDICAL RESEBVE CORPS: Purchase of Ordnance, etc., by members not 
in active service, of doubtful legality — but members of Officers' Reserve 
Corps may purchase. 

On inquiry by an ojBicer of the Medical Reserve Corps as to his 
right to purchase from the Ordnance Department a Springfield 
rifle, etc., for use in big game hunting. 

Held^ that as the Act of March 4, 1911, which created the Medical 
Reserve Corps, conferred upon the holders of commissions issued 
thereunder " all authority, rights and privileges of commissioned 
officers of the like grade in the Medical Corps of the Army, except 
promotion, hut only when called into active duty^^^ and that, as sec- 
tion 37 of the National Defense Act makes officers of the Medical 
Reserve Corps eligible for appointment to the Medical section of the 
Officers' Reserve Corps, and further that the " Medical Reserve Corps 
as now constituted by law " shall " cease to exist one year after the 
passage " of the National Defense Act, the sale of ordnance or ord- 
nance property to officers as members of the Medical Reserve Corps, 
such officers not being in active service, would be of doubtful legality, 
and recommended that such sale be not made when the officer will not 
be appointed to the Officers' Reserve Corps. 

Held further^ that Paragraph 1520, Army Regulations, as to sales 
of ordnance, etc., to officers, etc., is sufficiently broad to include mem- 
bers of the Officers' Reserve Corps. This accords, in principle, with 
the opinion of the Judge Advocate General of November 9, 1916, to 
the effect that as the Officers' Reserve Corps is an integral part of the 
Army of the United States as established by section 1 of the National 
Defense Act, its members are entitled to purchase uniforms, clothing 
and equipage under Paragraph 1174, Army Regulations. 

(6-301, J. A. G., Dec. 23, 1916.) 



NATIONAL GUARD: Commission of officer expiring while he is in the 
Federal service. 

Section 73 of the National Defense Act provides : 

" Commissioned officers of the National Guard of the several States, 
Territories and the District of Columbia now serving under com- 
missions regularly issued shall continue in office, as officers of the 
National Guard, without the issuance of new commissions," upon 
taking the prescribed oath. 

HeJd^ that this provision operates only to render effective in the 
National Guard commissions issued by a State and does not pro- 
long the officer's commission, and that a National Guard officer in 
the service of the United States can not, under existing law, be com- 
pelled to continue in the service of the United States as an officer of 
the National Guard after the expiration of his commission. 

(58-100, J. A. G., Dec. 6, 1916.) • 

(58-241, J. A. a, Dec. 8, 1916.) 



NATIONAL GUARD: Furlough of enlisten men to the Reserve. 

The following questions were submitted : 

{a) " Can a member of the National Guard be furloughed to the 
reserve before the end of the active service period? 



644 DIGEST OP OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

(h) "Can a member of the National Guard, once fiirloughed be- 
fore the end of the three year term of active service, be removed 
from the reserve and be restored to the active list to serve the re- 
mainder of the three year active term ? " 

Section 72, National Defense Act, provides that an enlisted man 
discTiarged from, service in the National Guard shall receive the dis- 
charge in writing as there prescribed, and that in time of peace dis- 
charges may be given prior to the expiration of terms of enlistment 
under such regulations as the President may prescribe. 

Eeld,^ that the word " service," as used in Section 72, relates to 
the active three year period, and that an enlisted man is entitled to 
a discharge in writing at the end of such period ; that such discharge 
is not the final and absolute discharge so familiar to the Regular 
Army, but is a release from active service, remitting the soldier 
to the reserve. Held^ us to (a), that since Section 72 unqualifiedly 
authorizes discharge in -time of peace, under regulations prescribed by 
the President, a National Guardsman may be discharged from active 
service and transferred to the reserve before the end of the active 
service period. Held^ as to (5), that since a discharge from active 
service is a release from so much of the enlistment contract as re- 
quires active service, such obligation can not be renewed without the 
soldier's consent, which would have to be embodied in a new contract, 
and therefore a member of the National Guard reserve can be re- 
stored to the three year active service status in the National Guard 
only by discharge and reenlistment. 

(58-214, J. A. G., Dec. 8, 1916.) 



NATIONAL GUARD: Retention of uniform after muster out, etc. 

The title to the clothing furnished at Federal expense to members 
of the National Guard or Organized Militia and brought with them 
upon entering the Federal service, as well as the title to clothing 
which is issued to them while in such service, is in the United States, 
and such clothing continues to be the property of the United States 
notwithstanding the muster out, discharge, or furlough to the re- 
serve, of the soldier to whom the clothing has been issued. The 
practice of charging the soldier with the value of clothing drawn by 
him against a fixed clothing allowance being merely for convenience 
in accounting and to incite economy in the use and care of the 
clothing, such soldier can not legally retain the same after muster 
out, etc., except as it may be available for his future use as a member 
of the National Guard. 

(72-420.2, J. A. G., Dec. 21, 1916.) 



OFFICERS: Second lieutenant, Quartermaster Corps (pay clerk), not eligible 
for transfer to Infantry. 

A second lieutenant, Quartermaster Corps, commissioned fi*om pay 
clerk under section 9 of the National Defense Act, requested that he 
be transferred to second lieutenant of Infantry. 

Held^ that under existing laws such transfer is not authorized. 

(64-240, J. A. G., Dec. 8, 1916.) 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 645 

OFFICERS' RESERVE CORPS: Assignment of members as disbursing offi- 
cers when ordered to active duty. 

The question was presented whether reserve officers of the Aviation 
Section of the Signal Corps, ordered to active duty, may legally be 
assigned to duty as disbursing officers. 

Held^ that reserve officers, when ordered to active duty in accord- 
ance with Sections 37 and 39 of the National Defense Act " for duty 
with troops," may, while in active service for such duty, be assigned 
to any duty in connection with such troops to which Regular Army 
officers serving therewith may be assigned, including duty as disburs- 
ing officers. 

(6-228.1, J. A. G., Dec. 19, 1916.) 



TRAVEL EXPENSES: Officer on duty in connection with National Guard. 

Section 67 of the National Defense Act provides for the payment, 
from the Federal appropriations for the National Guard, of the 
" actual and necessary expenses incurred by officers and enlisted men 
of the Regular Army when traveling on duty in connection with 
the National Guard." In the case of an officer of the Ordnance 
Department directed to make an inspection of field artillery material 
in the hands of the National Guard. 

Held^ that he was entitled to actual expenses of travel, and not 
mileage, for travel in the performance of such duty, payable from 
the $2,000 appropriation for " inspection of material pertaining to 
Field Artillery and Signal Corps in the hands of the National 
Guard" (39 Stat., 647.) 

(94-210, J. A. G., Dec. 4, 1916.) 



UNIFORM: Wearing of, by civilians of Army Young Men's Christian Asso- 
ciation. 

Section 125 of the National Defense Act prohibits the wearing of 
the uniform of the Army, Navy or Marine Corps, or any distinctive 
part thereof, or a uniform any part of which is similar to a distinc- 
tive part of the uniform, unless the wearer be a member of the 
United States Army, Navy or Marine Corps, providing, however, 
that certain military and quasi-military organizations such as " mem- 
bers of the organizations known as the Boy Scouts of America, or 
the Naval Militia, or such other organizations as the Secretary of 
War may designate," shall be excepted from the prohibition. 

Held^ that, as the organizations that are expressly named as ex- 
cepted are either military or quasi-military, and in view of the rule 
of associated words, it was the intention of Congress that the Secre- 
tary of War's authority to designate other organizations should be 
limited to those of a similar character, and that the Secretary of War 
is, therefore, not authorized to designate the Army Young Men's 
Christian Association as an organization exempt from the provisions 
of section 125 of the National Defense Act. 

(96-140, J. A. G., Dec. 23, 1916.) 



646 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEBAL. 

DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the olfice of the Judge Advocate General.) 

CIVILIAN EMPLOYEES: Right of dredge hand to be retui-ned upon his 
discharge to place of hire. 

A man employed at New Orleans as stoker on a Government dredge 
and who was discharged at Pensacola, Florida, by reason of the cessa- 
tion of dredging operations, made claim for the cost of his return 
passage to New Orleans " under marine law and usage." 

Heidi that the claimant's rights to return passage to New Orleans 
must be determined by the agreement which was made with him 
when he was hired and not under the merchant marine law and 
usage, and that, therefore, if there was no such provision in the em- 
ployment agreement, he was not entitled to reimbursement. 

(Comp. Treas., Dec. 8, 1916.) 



COMMUTATION OF QUARTERS: Officer occupying room in officers' club 
in public building. 

The question was presented whether an officer, not otherwise fur- 
nished quarters, who rented and occupied a small room in an officers' 
club in a public building, was entitled to commutation of quarters. 

Held^ that such quarters occupied by an officer must be considered 
public quarters within the meaning of the laws providing for quarters 
in kind and commutation thereof to officers of the Army. (See 22 
Comp. Dec, 27.) 

(Comp. Dec, Nov. 28, 1916.) 



DISBURSING OFEICERS: Responsibility in re forgery. 

While in general a disbursing officer is not responsible for pay- 
ments based on facts of which he has no knowledge and which 
are certified to him as correct by the proper administrative officer, 
this principle does not extend to allowing the disbursing officer credit 
for a payment made on a forged signature. 

(Comp. Treas., Dec 2. 1916.) 



ENLISTED MEN: Allotments of pay, when forfeited. 

Where an enlisted man of the Army allots a portion of his pay and 
thereafter, before the allottee has reduced any such allotments to pos- 
session, is sentenced by court-martial to forfeit all pay then due (at 
time of sentence), such unpaid allotments are included in his pay 
" then due," and, accordingly, are forfeited by the sentence of the 
court-martial. 

(Comp. Treas., Dec 14, 1916.) 



MEDICAL TREATMENT: In private hospital, Organized Militia. 

The Government is not chargeable with the cost of medical treat- 
ment furnished by a private hospital to an enlisted man of the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 647 

Organized Militia called out in the national defense where the man, 
at his own request and for his own convenience, was permitted to 
leave the military hospital to go to his home, and thereafter entered 
the private hospital on his own responsibility. 
(Comp. Treas., Dec. 15, 1916.) 



NATIONAL GUARD: Officers entitled to leaves of absence. 

An officer of the National Guard included in the President's call 
for Federal service who has taken the new National Guard oath pre- 
scribed by the Act of June 3, 1916, or has been mustered into the 
Federal service, is entitled to the benefits of the leave laws applicable 
to officers of the Regular Army from the time that he reported at his 
company rendezvous in response to the call of the President. 

(Comp. Treas., Dec. 4, 1916.) 



NATIONAL GUARD: Pay of soldiers rejected by State authorities before 
muster-in. 

A private of the National Guard who responded to the President's 
call of June 18, 1916, reporting at company rendezvous June 19, was 
subsequently, before muster-in, examined by the State authorities 
June 3, 1916, and rejected. The question was submitted whether he 
was entitled to pay from Federal funds in view of the fact that he 
was examined and discharged without ever having been presented to 
the United States mustering officer. 

Held^ that the soldier w^as entitled to pay from the date he reported 
at his company rendezvous in response to the President's call, and 
that the State authorities being unauthorized after the call to dis- 
charge him their action in rejecting the soldier was without legal 
force and effect, but might be confirmed by the Federal authorities, 
in which event his right to pay would terminate on the date of his 
rejection by the State authorities. 

(Comp. Treas., Dec. 19, 1916.) 



TRANSPORTATION: Land grant; shipment of officers' private mounts. 

The transportation rates for the shipment of officers' private 
mounts which they are required to keep for use in the military service 
are subject to land grant deduction; the decisions with respect to 
shipment of officers' household goods, to the effect that the rates 
therefor are not subject to land grant deductions, not being appli- 
cable to horses which are required to be kept for military service. 

(Comp. Treas., Dec. 11, 1916.) 



BULLETIN 9. 

Bulletin 1 WAK DEPARTMENT, 

No. 9. J Washington, Febi'uary ^, 1917. 

The following digest of opinions of the Judge Advocate General of 
the Army, for the month of January, 1917, and of certain decisions 
of the Comptroller of the Treasury and of courts, is published for 
the information of the service in general 
[2526413, A. G. O.] 

By order of the Secretary of War : 

H. L. SCOTT, 

Major General., Chief of Staff. 
Official : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

CIVILIAN EMPLOYEES: Appointment of, as court-martial reporters. 

An Army field clerk, salary $1,400 per annum, was employed as 
court-martial reporter while on leave of absence and after office 
hours, but authority for his payment for such services was questioned 
on' the ground that his employment was prohibited by paragraph 
987, Army Regulations (1913), and that it would be in violation of 
the statutes against the payment of double compensation. 

Held., that A. R. 987, instead of being a prohibition against the 
appointment of persons already in the military or civil service as 
reporters for military courts, and paying them therefor, is an ex- 
press recognition of the right to do so, subject to the requirements of 
A. R. 986 with respect to the manner of appointment and rates of 
pay, and further, that such employmentj during a leave of absence 
or outside of regular office hours, is not m violation of the so-called 
double compensation statutes (R. S., 1763-1765, and act of Aug. 29, 
1916, 39 Stat., 582). 

(16-412, J. A. G., Jan. 10, 1916.) 



COMMUTATION OF QUARTERS: Officers commissioned in tlie National 
Guard. 

An officer of the Regular Army, while on detached duty at Phila- 
delphia, was assigned as National Guard mustering officer at Macon, 
Ga., and while on the latter duty accepted a commission in the Na- 
tional Guard, but continued on duty as mustering officer for several 
weeks thereafter. After joining his regiment (National Guard) in 
pursuance of War Department orders, he claimed commutation of 
648 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 649 

quarters and the stabling of his horse at Philadelphia on the ground 
that he had not been relieved from his detached duty status at Phila- 
delphia, i 

Held,) that when an officer is assigned to a regiment and ordered to 
join that regiment for duty, his station becomes that of the organi- 
zation to which he is thus attached, and that in the instant case the 
officer could not properly be regarded as continuing in his detached 
duty status at Philadelphia, after he was relieved from duty as 
mustering officer at Macon and ordered to join his regiment. 

(58-720, J. A. G., Jan. 19, 1917.) 



CONTRACTS: Bailment. 

In the case of a contract for the manufacture from cloth furnished 
by the Government of uniform clothing, the building in which the 
work was being clone having been destroyed by fire, damaging the 
materials furnished by the Government, on the question whether or 
not the contractor could be charged with the loss, in the absence of 
a provision making him responsible for the safety of the property, 

Held^ that if the loss occurred without fault or negligence on the 
part of the contractor, as stated, it must fall on the Government as 
owner of the property; that in the absence of express provisions in 
the contract, he is not liable as an insurer of the property of the 
bailor, but is simply liable for the proper care of the same while in 
his custody. See 6 Corpus Juris, 1110, and authorities there cited. 

Held further^ that the contractor was legally entitled to be paid 
for the garments which were completed and ready for delivery as well 
as for those which were completed and accepted; and that the con- 
tractor should be allowed a reasonable time for the completion of the 
contract after materials are furnished to replace those destroyed by 
the fire. On the question whether a clause in the contract making 
the contractor " liable for any loss of or damage to any of the ma- 
terials furnished by the Quartermaster Corps while in his posses- 
sion," would cover a loss by fire, 

Held,, that such a clause would clearly make the contractor liable 
for loss by fire; that it would make him liable as insurer of the 
property except for causes falling within the well-recognized excep- 
tion of losses by acts of God or a public enemy ; and that a loss of 
the property by fire, unless the result of lightning, would not be 
within this exception. See 4 R. C. L., 714. 

(76-700 and 76-333, J. A. G., Jan. 3 and 23, 1917.) 



CONTRACTS: Collateral to secure performance. 

Certain questions were submitted as to the acceptance of Govern- 
ment, municipal, or corporate bonds, or other collateral, to secure 
contracts for aeroplanes and aeroplane equipment, it being stated 
that owing to conflicting claims as to patent rights, the rates of 
surety companies on bonds to secure such contracts were excessive. 

Held,, that there is no statute which limits the discretion of the 
Secretary of War as to the kind of security which he may require 
as to this class of contracts; that the Secretary of War may, there- 



650 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

fore, authorize the acceptance of collateral as proposed ; and that the 
instrument providing for such security should define the conditions 
under which the deposit is made, provide for the withdrawal of the 
particular bonds and the substitution of others in the event of such 
withdrawal becoming desirable; and should clearly define the rights 
of parties in case it becomes necessary to dispose of the collateral to 
satisfy any claims of the Government under the contract 
(12-120, J. A. G., Jan. 11, 1917.) 



CONTRACTS: Construction. 

In the case of a contract for supplying water at varying rates for 
different quantities, where it was not stated that the rates for the 
respective quantities should apply monthly, but a discount was pro- 
vided for bills " paid by the 10th of each month," 

Held^ that the contract should be construed as providing for 
monthly payments at prescribed rates for the respective quantities 
furnished during the month; it appearing further that this construc- 
tion would make the payments conform to the " regular tariff as 
charged to all consumers." 

(76-700, J. A. G., Jan. 23, 1917. ) 



DETACHED SERVICE: Officer on duty as Division Adjutant. 

An Infantry officer of the Regular Army with the rank of major, 
having served as acting adjutant of a National Guard Infantry Divi- 
sion from October 15 to November 2, 1916, inquired whether such 
duty was to be regarded as duty with troop organizations within 
the meaning of the detached service law. 

Ileld^ that such service was duty with organizations of troops 
within the meaning of the detached service law, the case being gov- 
erned by a former ruling dated June 18, 1914, in which it was held 
with reference to the detached service legislation of April 27*, 1914, 
that " when, therefore, a field officer of the line performs the regular 
and normal duties of a brigade adjutant, he is on duty and actually 
present for duty with a command composed of not less than two 
troops, batteries, or companies of that branch of the Army in which 
the officer holds his commission, provided, of course, the brigade be a 
brigade of his branch of the service." 

(6-124.3, J. A. G., Dec. 6, 1916. ) 



ENLISTED MEN: Appointment as cadets, U. S. Military Academy. 

An enlisted man with more than one year's service in the National 
Guard inquired whether such service could be taken into considera- 
tion in determining his eligibility for appointment from the Regular 
Army as a cadet to tlie U. S. Military Academy under section 2 of 
the act of May 4, 1916, which provides : 

" That the TPresident is hereby authorized to appoint cadets to the 
United Stittes Military Academy from among enlisted men in num- 
ber as nearly equal as practicable of the Regular Army and the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 651 

National Guard between the ages of nineteen and twenty-two years 
who have served as enlisted men not less than one year, to be selected 
under such regulations as the President may prescribe." 

Held., that to satisfy the requirements of the statute the prior serv- 
ice must have been rendered in that branch from which the applica- 
tion is made. 

(6-142, J. A. G., Jan. 18, 1917.) 



ENLISTED MEN": Appointment of sergeants, limited warrant, in provi- 
sional ambulance companies. 

A lance corporal in a provisional ambulance company, with the 
Mexican Punitive Expedition, having passed an examination for 
appointment as sergeant. Medical Department, limited warrant, the 
question was presented as to the legality of making such appoint- 
ment. 

Ileld^ that such appointments may properly be made in provisional 
ambulance companies the organization of which has been authorized 
or approved by the Secretary of War. 

(6-227.1, J. A. G., Nov. 17, 1916. ) 



ENLISTED MEN: Lance corporals. 

The question was presented as to the propriety of appointing a 
lance corporal, in an Infantry supply company, from the grade of 
wagoner, in view of the fact that the personnel of such company does 
not include the grade of private. 

Tleld^ that such appointment may not be made, so long as para- 
graph 272, A. R., 1913, authorizes only " privates " to be so appointed. 

(6-151.1, J. A. G., Jan. 12, 1917.) 



MILITARY ACADEMY: Appointment of cadets. 

The question was presented whether enlisted service in the Navy 
may be counted in determining the eligibility of an enlisted man in 
the Regular Army for appointment to the Military Academy under 
the provisions of section 2 of the act of May 4, 1916, authorizing 
appointment as cadets of enlisted men of the Regular Army and 
National Guard " who have served as enlisted men not less than one 
year." 

Tleld^ that the statute contemplates a year's service in one or the 
other of the forces named, and that service as an enlisted man in the 
Navy could not be counted for the purposes of the act. 

(6-141, J. A. G., Dec. 4, 1916.) 



NATIONAL GUARD: Enlisted men, discharge. 

An enlisted man of the New York National Guard had served, on 
March 15, 1915, five years, the term of his enlistment, after deducting 
the time he was " dropped," which under the provisions of the State 
law may be done without terminating service. Not having been dis- 



652 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

charged at the time of the call of the President for the muster of his 
organization into the Federal service, he responded to the call and, 
on July 1, 1916, was mustered into the service of the United States. 

Ileld^ on a claim made for his discharge, that this soldier should 
be credited with the whole of his term which he served in the Na- 
tional Guard, less the periods during which he was " dropped," and 
that, having served more than six years, he was entitled to a dis- 
charge from the service. 

(58-214, J. A. G., Jan. 18, 1917.) 



NATIONAL GUARD: Organization. 

Section 60 of the National Defense Act provides: 

" The organization of the National Guard, including the composi- 
tion of all units thereof, shall be the same as that which is or may 
hereafter be prescribed for the Regular Armv. subject in time of 
peace to such general exceptions as may be authorized by the Secre- 
tary of War." 

Request was made on behalf of medical officers of the National 
Guard in the service of the United States that the Secretary of War, 
under his power to authorize general exceptions, permit them to 
hold the office of captain and to receive the pay of that office, irre- 
spective of their length of service as medical officers of the National 
Guard. 

Eeld^ that the word " exception " in section 60 is used in the sense 
of " exclusion," that it does not include " substitution," that the 
statute authorizes modification only by way of exclusion, and that 
the request could not, therefore, be granted. 

(58-213.2, J. A. G., Jan. 13, 1917.) 



NATIONAL GUARD: Title to uniform clothing. 

The question of the title of enlisted men of the National Guard 
or Organized Militia to the uniform clothing issued to them while 
in the Federal service was again submitted with reference to a com- 
munication from the adjutant general of a State, in which it was 
contended that upon the discharge or furlough to the Reserve of a 
soldier of the Regular Army, the clothing issued to him becomes his 
private property, and that the same rule should apply to the enlisted 
men of the National Guard upon their release from Federal service. 

Ileld^ that it is clear from the statutes forbidding the sale of uni- 
form clothing, particularly section 35 of the Criminal Code, and the 
decisions of the courts thereunder, that the uniform clothing issued 
to a soldier is the "public property of the United States;" that a 
soldier of the Regular Army, upon his discharge or furlough to the 
Reserve, does not acquire any legal title thereto ; and that by section 
125 of the National Defense Act of June 3, 1916, he is only per- 
mitted to wear the uniform to his home within three months after 
his discharge. 

Held further^ that as a soldier of the National Guard or Or- 
ganized Militia is not finally discharged, upon his muster-out of the 
Federal service, the clothing in his possession upon release from 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 653 

such service, should be available for his use while a member of the 
National Guard or Organized Militia after his muster-out ; and that 
settlement with the State should be made upon the basis of replacing 
the clothing which was brought with the State organizations into 
the Federal service by the clothing in the possession of the same 
upon their muster-out. 

(72-420.2, J. A. G., Dec. 21, 1916.) 



OFFICERS' RESERVE CORPS: Eligibility of officers and enlisted men of 
Regular Army and National Guard for membership in. 

An officer of the National Guard asked whether he was eligible 
for appointment in the Officers' Eeserve Corps, and, if eligible, 
whether he might continue in the active service of the United States 
as an officer of the National Guard after his appointment as an officer 
of the Officers' Reserve Corps. 

Ileld^ that since the purpose for which the Officers' Reserve Corps 
is organized is to provide a reserve of officers, it is a logical conclu- 
sion that such a reserve should not be composed of officers already 
available as such for the military service of the United States; and 
that the regulation made by the President eliminating from con- 
sideration for appointment in the Officers' Reserve Corps officers of 
the National Guard and of the Regular Army, contained in the first 
sentence of Section III of General Orders No. 42, "War Depart- 
ment, July 28, 1916, and reading — 

" No applicant will be examined who is an officer of the Regular 
Army on the active list, or the National Guard, or who is not a 
citizen of the United States " ; is made under ample authority of 
statute and is effective to exclude from appointment in the Officers' 
Reserve Corps both officers of the National Guard and officers of the 
Organized Militia not yet transformed into the National Guard, as 
well as officers of the Regular Army, 

With respect to the third paragraph of section 37 of the National 
Defense Act, providing that — 

"All persons now carried as duly qualified and registered pursuant 
to section twenty-three of the act of Congress approved January 
twenty-first, nineteen hundred and three, shall for a period of three 
years after the passage of this act, be eligible for appointment in the 
Officers' Reserve Corps in the section corresponding to the arm, 
corps, or department in which they have been found qualified, with- 
out further examination, except a physical examination, and sub- 
ject to the limitations as to age and rank herein prescribed: Pro- 
vided^ That any person carried as qualified and registered in the 
grade of colonel or lieutenant colonel pursuant to the provisions of 
said act on the date when this act becomes effective may be commis- 
sioned and recommissioned in the Officers' Reserve Corps with the 
rank for which he has been found qualified and registered. * * * " 

Held, that while this provision of the statute declares the persons 
therein described to be eligible for appointment in the Officers' Re- 
serve Corps, it is not a mandate for their appointment; and, if for 
reasons of national policy the President may decide, as it is apparent 
he has decided, that persons holding commissions in available mili- 
tary forces of the United States shall not also be commissioned in the 
Officers' Reserve Corps, the provision of section 37 of the national 



654 DIGEST OF OPINIOlSrS OF THE JUDGE ADVOCATE GENERAL. 

defense act just quoted is not violated. The eligibility of such officers 
is not interfered with^ though, for the reason that they already bear 
a relation to the Government which is equivalent to that which would 
be established by their appointment in the Officers' Reserve Corps, 
and which renders their appointment unnecessary for the attainment 
of the purpose of the law creating the Officers' Reserve Corps, the 
President has, in his discretion, determined and ordered that they 
shall not be appointed. 

Held further^ that enlisted men of the Regular Army or National 
Guard who are found qualified, upon examination, may be commis- 
sioned in the Officers' Reserve Corps without impairment of their 
enlisted status, and that officers of the Officers' Reserve Corps may, if 
otherwise eligible, enlist in the Regular Army or National Guard. 
(5&-241, 6-150, J. A. G., Aug. 30, 1916.) 
(58-241, J. A. G., Aug. 30, 1916, and Dec. 27, 1916.) 



OFFICERS' RESERVE CORPS: Eligibility of Philippine Scouts for ap- 
pointment in. 

The question was presented whether under the laws and regulations 
governing the Officers' Reserve Corps an officer of Philippine Scouts 
is eligible for appointment. General Orders No. 32, War Depart- 
ment, 1916, directs that: 

" No applicant will be examined who is an officer of the Regular 
Army, * * * " 

Held^ that an officer of Philippine Scouts is an officer of the Regu- 
lar Army in the sense of the regulation and is not eligible for appoint- 
ment in the Officers' Reserve Corps. 

(6-250, J. A. G., Jan. 19, 1917.) 



OFFICERS' RESERVE CORPS: Purchase of subsistence stores by mem- 
bers of. 

Upon a request for information from a member of the Officers' 
Reserve Corps on the inactive list as to whether he was entitled to the 
privilege of purchasing subsistence stores under paragraph 1239, 
A. R., 1913, 

Held, that sales of Government property to members of the Officers' 
Reserve Corps on the inactive list should be limited to those articles 
of clothing and equipment which would be required by them in the 
public service in case of their being called on for active duty, and that 
as subsistence stores do not fall within this category, their sale to 
members of the Officers' Reserve Corps not in active service is not 
authorized. 

(6-301, J. A. G., Jan. 15, 1917.) 



OFFICIAL PAPERS: Copies of, to support claims. 

On application by attorneys for a copy of an official report of a 
board of officers respecting the use and occupation of private lands 
for military purposes, 

Ileld^ that in view of the statute which prohibits officers from aid- 
ing or assisting in the prosecution or support of any claims against 
the Government (section 109, Criminal Code), as well as of the pro- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 655 

visions of paragraph 824, Army Regulations, on the subject, and in 
line with the practice common to the several Executive Departments, 
the request should not be complied with — an additional reason being 
that the Department of Justice would be called upon to defend a suit 
based on the claim, and might be embarrassed by the conclusions of 
the board. 

(66-124, J. A. G., Jan. 12, 1917.) 



POST EXCHAISTGES: Settlement of disputes between exchanges and cred- 
itors. 

A post exchange of a National Guard regiment in the service of the 
United States purchased certain supplies, which were returned to the 
vendor for credit on account when the regiment was ordered mustered 
out of the Federal service. The vendor refused to accept the goods 
returned, asserting that they were not purchased with that under- 
standing, while the post exchange officer insisted that all the ex- 
change's goods were purchased with the distinct understanding that 
they were to be returned in the event of the muster-out of the regi- 
ment. The vendor appealed to the War Department. 

Held^ that it is not the policy of the War Department to interfere 
in the contractual relations between post exchanges and their 
creditors where there is a bona fide dispute which appears to be a 
proper case for judicial determination^ and that no action could be 
taken in the instant case for the further reason that the regiment to 
which the post exchange belonged had been mustered out of the 
Federal service and its officers had passed primarily beyond the 
control of the War Department. 

(40-100, J. A. G., Jan. 2, 1917.) 

PUBLIC PPvOPERTY: Liability of ship owner for loss or damage of, at sea. 

In the case of two Army mules lost at sea from a commercial vessel 
upon which they were being shipped by the Quartermaster Corps, 
the steamship company claimed exemption from liability on the 
ground that the loss was due to dangers of the sea, the mules having 
been washed overboard from the deck, where they were stowed in 
cattle stalls when the vessel " shipped a succession of heavy seas." 

Held^ that under the Harter Act (27 Stat., 445) it was incumbent 
upon the vessel owner to show that it exercised due diligence to make 
the vessel seaworthy before commencement of the voyage, including 
the deck structure for securing the mules, and that in the absence of 
proof of the exercise by the company of due diligence to make the 
vessel in all respects seaworthy, as required by the Harter Act, the 
companv could not be exempted from liability for the loss. 

(76-700, J. A. G., Jan. 22, 1917.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

CLAIMS: Additional payment after final settlement, jurisdiction. 

Upon making payment under a contract for furnishing a machine 
lathe according to specifications, the sum of $6.07 was deducted for 



656 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

liquidated damages for delay. Both the Government and the con- 
tractor understood at that time that the deduction was proper, but 
subsequently it was found by the contractor that the delay, which oc- 
curred in the subcontractor's manufactory, was due to a strike and 
was within the exception against liquidated damages under the con- 
tract. Upon presentation of claim for the amount deducted, 

Ilelcl^ by the comptroller, that final settlement having been made 
with the contractor in accordance with the facts as understood at the 
time of settlement, the voucher submitted consituted a claim for ad- 
ditional payment which could not properly be paid by the War De- 
partment but should be sent to the auditor for the War Department 
for development of the facts and settlement. 

(Comp. Treas., Jan. 18, 1917.) 



PAY AND ALLOWANCES: Receiving salaries of two positions. 

Section 6 of the act of May 10, 1916, as amended (39 Stat., 120, 
582), prohibits any person from receiving the pay of two Federal 
positions " when the combined amount of said salaries exceeds the 
sum of $2,000 per annum," but it is expressly provided that the act 
shall not apply to retired officers and enlisted men or to officers and 
enlisted men of the Organized Militia and Naval Militia. In the 
case of a quartermaster clerk who held a commission in the National 
Guard and was mustered into the Federal service, 

Held^ that upon his muster into the Federal service he ceased to 
be a member of the National Guard, within the meaning of the Act 
of May 10, 1916, and became an officer of the Army and as such was 
subject to the prohibition of that act. 
(Comp. Treas., Jan. 3, 1917.) 



DECISIONS OF THE COURTS. 

(Digests prepared in the office of the Judge Advocate General.) 

CONTRACTS: Correction of mistake. 

In the case of a Navy Department contract for furnishing coal, 
delivered at Manila Bay from American ports, the terms were set- 
tled by the Bureau of Equipment, and it Avas agreed that a certain 
important clause appearing in the printed specifications upon which 
proposals were asked should be omitted from the contract. Through 
a clerical inadvertence, however, the clause was left in the requisition 
sent to the Bureau of Supplies and Accounts, and the contract was 
drawn embodying it and signed by the contractor without careful 
reading. Thereafter, when the mistake was discovered, the Navy 
Department notified the contractor that the contract ^ would be 
amended by the omission of the clause, but the accounting officers 
refused to recognize the amendment. In a suit for the reformation 
of the contract, 

Ueld^ by the Supreme Court, that the contractor was entitled to 
have the written contract corrected, the court saying: "It is the 
contract that has been made through the agent authorized to make it 



DIGEST OF OPINIOISrS OF THE JUDGE ADVOCATE GENERAL. 657 

that is to be reduced to writing and if a clerk or some other agent 
makes a mistake we perceive no reason why the writing should not 

be made to conform to the fact. * * * There was a mistake made 
by a clerk in not striking out a printed clause from that requisition. 
It is as if a principal, after making the agreement, had taken a 
printed form and forgotten to draw his pen through the words. The 
failure of the contractor to read before signing an instrument, the 
terms of which he had seen in print, is not enough to debar him from 
seeking relief." 

In reference to the contractor's further claim for the recovery back 
of port charges levied against his vessels at Manila on the ground 
that the Philippine tariff act of March 3, 1905, exempts from such 
charges " a vessel belonging to or employed in the service of the 
Government of the United States," 

Held^ that the words quoted do not mean every vessel that carries 
a ton or a cargo of coal for the Government but only one that is under 
the control of the United States, and is an agency of the Govern- 
ment, and that therefore the contractor's vessels did not come within 
the meaning of the provision. 

{Ackerlind v. United States, decided by U. S. Sup. Ct., Apr. 3, 
1916.) 



PUBLIC PROPERTY: Damage to. 

In a suit by the United States in admiralty against the owner of a 
vessel for injuries to a Government cable, 

Held, by the court, that as the evidence showed that the damage 
was the result of negligence in the management of the vessel, there 
should be a decree for the Government unless the claim of the owner 
of the vessel that^ owing to the character of the property injured, 
admiralty was without jurisdiction, w^as sound. Upon the latter 
point. Held, that under the authorities the location of the cable is 
controlling and gives it a maritime relation; and that since the in- 
juries were done in the operation of navigation to a cable while occu- 
pying some portions of the navigable channel, the matter came 
within the admiralty jurisdiction. 

(Utiited States v. North- German Lloyd, District Court, So. Dist. 
of N. Y., Jan. 13, 1917.) 

93668°— 17 i2 



BULLETIN 15. 

Bulletin 1 WAE DEPARTMENT, 

No. 15. J Washington, March ^4, 1917. 

The following digest of opinions of the Judge Advocate General of 
the Army, for the month of February, 1917, and of certain decisions 
of the Comptroller of the Treasury and of courts, is published for 
the information of the service in general. 
[2526413 A— A. G. O.] 
By order of the Secretary or War : 

H. L. SCOTT, 
Major General., Chief of Staff. 
Official : 

H. P. McCain, 

The Adjutant GeTieral. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ABSENCE: Stoppage of pay. 

Should a stoppage of pay be made against a soldier for the time he 
is absent from duty under test to ascertain whether he is suffering 
from disease resulting from his own misconduct ? 

Held: Soldiers, presumably not diseased, ordered into hospital 
for the purpose of ascertaining whether they have diseases due to 
their own misconduct, should not be subject to stoppage for absences 
so occasioned when the test does not disclose the presence of such 
diseases, and this should be the rule regardless of the suspicion that 
may be engendered by a record of previous but presumably eradicated 
disease, 

(34-052, J. A. G., Feb. 21, 1917.) 



ALLOWANCES: Issue of shelter tents to officers on memorandum receipt. 

The War Department interpretation of pertinent statutes is that 
the issue of Government property to officers in cases not specifically 
authorized by law is a violation of Revised Statutes 1269 which for- 
bids allowances to officers except as provided by statute. The ques- 
tion is raised whether the issue of shelter tents to officers on memo- 
randum receipt is forbidden by Revised Statutes 1269. 

Held : The legal intendment of the word " allowance " imports com- 
pensation. That which is given a man for the primary purpose of 
his advantage as a man is an allowance; that which is intrusted to 
him to use for the primary purposes of the Government is not an 
allowance. Shelter tentage, and in general the war material of the 
Government, which is intrusted to an officer on memorandum receipt, 

658 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 659 

not as compensation but to promote the performance of his military 
duty, is not an allowance, and so may be issued without express 
statutory authority. 

(80-130, J. A. G., Feb. 14, 1917.) 



BONDS: Cancellation of. 

Upon the question raised as to the authority of the Secretary of 
War to surrender a bond, which had been accepted by him in the 
exercise of his discretion under a statute, upon the city furnishing 
a bond in a reduced penalty deemed sufficient for the purpose. 

Field, in accordance with the practice of the several executive de- 
partments, that, in the absence of authority from Congress, ex- 
ecutive officers have no authority to surrender or release obligations 
of the United States; that upon the acceptance of the bond the 
United States acquired certain rights as obligee ; and that the princi- 
ple is that no executive officer, without authority of law, can sur- 
render or waive such rights. Wliile the United States has the same 
powers in respect to contracts that private personsi have {U. S. v. 
Smith, 194 U. S., 218) the principle is that its officers or agents do 
not possess plenary powers (8 Comp. Dec, 106), and can not, with- 
out authority from Congi-ess, surrender or waive the rights of the 
Government (citing 4, Opin. Atty. Gen., 312). While the Secretary 
of War may, if he deems the security insufficient, require further 
security, he may not, therefore, without authority of Congress, re- 
lease security which has been accepted. 
(12-332, J. A. G., Jan. 3, 1917.) 



CIVIL AUTHORITIES: Expenses for detention of soldier. 

"Wliere a soldier absent without leave was arrested by the chief of 
police of a town, who notified the military authorities thereof, and 
was instructed to hold him until the arrival of a guard sent to con- 
duct the soldier back to his post. 

Held, that the chief of police was entitled to reimbursement for 
expense incurred by him in connection with the arrest and deten- 
tion of the soldier, such arrest having been ratified by the request 
of the military authorities that he be held, and that there being no 
other appropriation available therefor payment could be authorized 
by the Secretary of War from the appropriation for contingencies 
of the Army. 

(26-200, J. A. G., Jan. 3, 1917.) 



CONTRACTS: Advertising for bids. 

The city of New York had appropriated $95,000 to fill in certain 
marsh lands which it held adjacent to other marsh lands owned by 
the Government on a military reservation in New York Harbor. It 
offered to enter into a contract with the Government to fill in at the 
same time, and at the actual cost of the work, the said Government 
marsh, lands, the estimated cost of the work required to be done on 



660 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

the Government reservation being but $2,500, about one-half of what 
it was estimated that the work would cost if bids should be called 
for and the contract let to the lowest bidder. The question sub- 
mitted was whether, in view of the increased cost of the work, if done 
under contract with the lowest bidder, advertising could be dispensed 
with and a contract entered into with the city under the terms above 
stated for doing the work. 

Ileld^ in view of the comparatively large amount of work to be. 
done by the city and the necessary expense attendant upon bring- 
ing a plant to the site of the Avork, that if the city will do the work 
required by the War Department at cost, no possible advantage 
could be gained by the Government through advertising; that, in 
other words, advertising under such a situation would be useless, as 
it would be impracticable thereby to secure competition, and hence 
there would be no legal objection to entering into a contract with 
the city for doing the work at the price per cubic yard which it 
would cost the city. 

(76-124, J. A. G., Feb. 7, 1916.) 



CONTRACTS : Construction. 

Where a contract was made for furnishing such quantities of 
bituminous coal " as may be required " for use at certain designated 
posts during the fiscal year, and thereafter the National Guard 
troops were called into the active service by the President, resulting 
in greatly increased quantities of coal being required at said posts 
over the estimated requirements. 

Held, that the contract having been made prior to the calling out 
of the militia troops, it did not contemplate the possibility of the 
extraordinary demands incident thereto, and the excess require- 
ments of the posts due to the presence there of the militia troops were 
therefore outside of the obligations of the contract and should be 
provided for under a separate contract or by open-market purchase, 
according to the exigencies of the service. The contractor having 
asked to be relieved from the obligation of furnishing more than the 
estimated contract requirements due to the increased market price of 
coal. 

Held, that, while he was under no obligation under his contract to 
make further deliveries in future, yet, in respect of such deliveries 
as had already been made, the same having been called for and de- 
livered as a contract obligation, the department could grant no 
relief. 

(76-600, J. A. G., Feb. 14, 1917.) 



DISCHARGE: Effect of unauthorized discharge. 

An officer of the National Guard of Massachusetts was appointed 
mustering officer for the special purpose of mustering out of Federal 
service a named enlisted man of the National Guard of Massa- 
chusetts. Through misunderstanding, a blank for discharge from.- 
the Army of the United States was completed and delivered, citing 
the mustering officer's authority and purporting to sever the connec- 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 661 

tion of the enlisted man with the Army of the United States. Did 
this document discharge the soldier from the National Guard? 

Held: The discharge operated only to muster the man out of 
Federal service. As a discharge from the Army, it was not merely 
erroneously given; it was unauthorized in law and null. It could 
not have been effective to sever his relation with the National Guard 
for two reasons — because such an effect was unauthorized in law; 
because the mustering officer had been delegated no power to con- 
summate such a severance even if it had been authorized. 

(58-052, J. A. G., Feb. 24, 1917.) 



EX-OFFICERS : Recommissioning'. 

Section 24 of the national-defense act provides : " That the Presi- 
dent may recommission persons who have heretofore held commis- 
sions in the Regular Army and have left the service honorably after 
ascertaining that they are qualified for service physically, morally, 
and as to age and military fitness." Inquiry was made whether an 
ex-officer who had been discharged for failure to pass an examination 
for promotion, under the act of October 1, 1890 (26 Stat., 662), 
could be recommissioned under section 24 (supra). 

Held., that, since section 24 requires " military fitness," and since 
an officer discharged under the act of 1890 has had his military fit- 
ness tested in the most complete manner possible, section 24 does 
not contemplate or authorize the recommissioning of such ex-officer. 

(64-221.4, J. A. G., Feb. 13, 1917.) 



FIELD CLERKS: Heat and light allowances. 

The question was presented whether Army field clerks and field 
clerks. Quartermaster Corps, were entitled to heat and light allow- 
ances in public quarters which they are authorized to occupy. Such 
clerks who have had the requisite service prescribed in the act of 
August 29, 1916, creating those positions are by the statute given " the 
same allowances, except retirement, as heretofore allowed by law 
to pay clerks. Quartermaster Corps." 

Ileld^ that it having been definitely determined that no provision 
was made by law for furnishing pay clerks with fuel and light at 
jHiblic expense in public quarters (Buls. of 1915; No. 5, p. 5, and No. 
21, p. 7), it follows that the field clerks are not entitled to such 
allowances. As in the case of pay clerks, Congress had made specific 
provision for cormmitation of heat and light, but no provision has 
been made for furnishing these allowances in kind. 

(72-310.3, J. A. G., Feb. 8, 1917.) 



MEDALS OF HONOR: Findings of board under section 122 of national- 
defense act. 

Certain questions were submitted as to the construction of section 
122 of the national-defense act, approved June 3, 1916, providing 
for the appointment of a board of retired officers to investigate and 



662 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

report upon past awards or issues of the so-called congressional 
medals of honor by or through the War Department. 

Held^ that as the statute expressly requires that " in any case in 
which the hoard shall find and report " that the medal was issued for 
any cause other than that specified in the statute "the name of the 
recipient of the medal so issued shall be stricken permanently from 
the medal-of -honor list," the Secretary of War is without discretion 
to review or control the findings of the board ; that the law requires 
from him administrative action (1) to cause the name of the recipient 
of the medal which the board finds was improperly issued to be 
stricken " permanently from the official medal-of -honor list " ; and 
(2) if the recipient "shall still be in the Army" to require him to 
" return said medal to the War Department for cancellation " ; and 
that the act requires the Secretary of War to proceed at once to give 
execution to the findings of the board in these respects and gives him 
no authority to postpone action. 

Held further^ that although the provision making it a misdemeanor 
for the recipient of a medal of honor which the board finds was 
improperly issued to wear or publicly display the same fails to 
prescribe a penalty for the offense, nevertheless the statute does not 
charge the Secretary of War with any duty to enforce this provision. 

(46-112, J. A. G.; Feb. 7, 1917.) 



MEDICAL DEPARTMENT: Rank of sergeants, i&rst class. 

Section 3 of the act of March 1, 1887 (24 Stat, 435), provides 
that — 

" Hospital stewards * * * shall have rank with ordnance 
sergeants and be entitled to all allowances pertaining to that grade " ; 
the act of March 2, 1903, that— 

"The rank * * * of sergeants, first class, * * * shall be 
the same as now provided by law for hospital stewards * * * " ; 
and by section 10 of the national defense act the term " Hospital 
Corps " is superseded by the term " enlisted force of the Medical 
Department," comprising all grades formerly existing in the Hos- 
pital Corps and several new grades, and provision is made that — 

" The enlisted men of the Hospital Corps who are in active 
service at the time of the approval of this act are hereby transferred 
to the corresponding grades of the Medical Department established 
by this act." 

Held, that there is now no law requiring sergeants, first class, 
Medical Department, to be graded with ordnance sergeants, the pro- 
vision to that effect having been omitted from the national defense 
act, which created anew the grade of sergeant, first class, Medical 
Department ; and that, therefore, it is not in contravention of statutes 
to rank sergeants, first class, Medical Department, below ordnance 
sergeants in amending paragraph 9, Army Kegulations. 

(6-227.1, J. A. G., Jan. 13, 1917.) 



NATIONAL GUARD: Clothing. 

The governor of a State, referring to the opinion of the Judge 
Advocate General dated November 4, 1916 (Bui. 53, W._D., 1916), 
with reference to charging the clothing in the possession of the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 663 

militia on their muster into the Federal service against the initial 
allowance of the men, submitted the following questions : 

(a) Whether the interpretation of the law as given in the said opin- 
ion is not in violation of paragraph 460, Army Regulations? 

(h) Whether it does not have the effect of requiring the full price 
of clothing issued to the State and brought with the National Guard 
or Organized Militia into the Federal service to be charged against 
the initial allowance of the enlisted men? 

Held, with reference to (a), that the requirement as stated in the 
said opinion of the Judge Advocate General is contrary to the terms 
of the regulation, but that the law requires that the militia while in 
the Federal service shall receive the same pay and allowances as 
Eegular troops, and as Regular troops are charged with the clothing 
supplied to them on enlistment, it follows that the clothing with 
which the militia is supplied when entering the Federal service, the 
clothing having been furnished by the Government, must be charged 
to them; that the requirement of the regulation, being inconsistent 
with the law, must give way to the law. 

Held, with respect to ( & ) , that the opinion of this office under con- 
sideration does not require the clothing to be charged at the full issue 
price of the same, but that if the clothing is worn it should be 
charged at a reduced price fixed by a surveying officer in view of its 
condition at the time. 

(72-420.2, J. A. G., Dec. 15, 1916.) 



NATIONAL GUARD: Property shortages. 

On the question as to the action which should be taken to relieve 
the hardships involved in holding up the final pay accounts of offi- 
cers of the National Guard or Organized Militia pending the de- 
termination of their responsibility for shortages of public property. 

Held, that the question of the accountability for public property 
is one to be determined by the Secretary of War under the act of 
March 29, 1894 (28 Stat., 457) ; that there is, therefore, no legal ob- 
jection to modifying the regulations so as to relieve the hardships 
complained of so far as practicable ; and that such hardships can be 
relieved, with due regard to the interests of the United States, by 
modifying the regulations so as to permit of settlement as follows: 

{a) As to officers of the Organized Militia or National Guard who, 
after their muster out, have the status of officers of the National 
Guard as organized under the act of June 3, 1916, final payment to 
be made as soon as the status of the complainant as an officer of the 
National Guard is fixed — the Government being secured by the right 
to withhold pay accruing to the officer as an officer of the National 
Guard for any shortages in respect of which it may be finally de- 
termined he is chargeable. 

(6) As to officers of the Organized Militia who, upon their mus- 
ter out, do not assume the status of officers of the National Guard as 
organized under the act of June 3, 1916, partial payments be made 
withholding only the amount for which the preliminary report indi- 
cates that the officer is properly accountable, such partial payment 
to be made when the complainant has signed a certificate to the effect 
that all property for which he is accountable or responsible has been 



664 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

used for the benefit of the Government, etc. Final payment should be 
withheld until the accountability of the officer is finally determined. 
(58-700, J. A. G., Feb. 15, 1917.) 



NATIONAL GUARD: Legality of muster out. 

Wliere an officer of the headquarters of a National Guard brigade 
was mustered out in Texas, following the return of a portion of the 
brigade to New York for muster out, leaving only one regiment on 
duty in Texas, on the question whether it was legal to muster him 
out in Texas instead of returning him to his home station for muster 
out. 

Ueld^ that the papers indicate that the muster out was pursuant 
to an order of the Secretary of War issued because the brigade head- 
quarters, to which the officer in question belonged, was no longer 
authorized, the brigade being reduced by the muster out of a part 
thereof to a single regiment, and that while the order should have in- 
cluded the brigade headquarters, there could be no question of the 
legality of the muster out of the officer in Texas under the orders 
issued in this case. 

(58-301, J. A. G., Feb. 20, 1917.) 



NATIONAL GTrARD ORGANIZATION: General exceptions. 

Section 60 of the national- defense act provides : 

" The composition of the National Guard, including the composi- 
tion of all units thereof, shall be the same as that which is or may 
hereafter be prescribed for the Regular Army, subject in time of 
peace to such general exceptions as may he authorized hy the Secre- 
tary of War.'''' 

Request was made on behalf of a number of medical officers of the 
National Guard in Federal service who had been denied the pay of 
captain, on the ground that they had not had the required number 
of years of service, that the Secretary of War, under his power given 
by the foregoing statutes to make " general exceptions," authorize 
them to be recognized as captains and to receive the pay of that 
grade, 

Held^ that the term " exception," in section 60, is used in the sense 
of exclusion, that it does not include substitution, that the Secretary 
of War could only authorize modification by way of exclusion, and 
that the request could not, therefore, be granted. 

(58-210, J. A. G., Jan. 13, 1917.) 



NATIONAL GUARD RESERVE OFFICERS: Appointment in Regular 
Army. 

Inquiry was made whether commissioned officers of the National 
Guard Reserve are included in the expression "commissioned officers 
of the National Guard," designated by section 24 of the national- 
defense act as the fourth class in the order of appointment to 
vacancies in the grade of second lieutenant. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 665 

Held,, that section 61), relating to the period of enlistment, and sec- 
tion 70, prescribing the oath of enlistment, as well as other sections 
of the national-defense act, indicate clearly that the term " National 
Guard " includes an active and a reserve force, and that unless the 
context indicates a different meaning the term " National Guard " 
should be construed as including the National Guard Keserve. The 
question was answ^ered in the ailirmative. 

(64-213.3, J. A. G., Feb. 3, 1917.) 



POSSE COMITATTJS: Regular officers serving under commissions in Na- 
tional Guard. 

On the question raised as to Avhether section 15 of the act of June 
18, 1878 (20 Stat., 152), forbidding the employment of any part of 
the Army as a yosse coinitatus or otherw^ise to enforce the laws, ex- 
cept where expressly authorized by Congress, would preclude an 
officer of the Regular Army serving under a commission in the Na- 
tional Guard from serving with the National Guard in case of an 
emergency causing the governor to call out the same. 

Held,, that as section 100 of the national-defense act, approved 
June 3, 1916, authorizes officers of the Regidar Army detailed to 
duty with the National Guard to " accept commissions in the Na- 
tional Guard, with the permission of the President, determinable in 
his discretion," and as section 61 of the same act recognizes the rights 
of the States " in the use of the National Guard within their respec- 
tive borders in time of peace," the service of the regular officer under 
his commission as an officer of the National Guard would not be a 
violation of the fOSse co7nitatus act; that while holding a cormnis- 
sion in the National Guard under authority of the act of June 3, 
1916, he would be under orders of the governor of the State, and 
for the time being his status as a regular officer would be in abey- 
ance ; and that as an officer of the National Guard he would be sub- 
ject to the lawful orders of the governor of the State. 

(64-312.1, J. A. G., Jan. 18, 1917.) 



PUBLIC PHOPERTY: Lease of. 

Bids having been invited for the lease of grazing privileges on a 
target and maneuver reservation, under the act of July 28, 1892, on 
the question raised whether it would be legal to pass over the highest 
bid in favor of the alternative bid of another bidder containing con- 
ditions materially dilt'erent from those stated in the advertisement. 

Held, that, if the legality of the proposed action be tested by the 
decisions under statutes regarding advertising in the making of 
Government contracts, it would not be legal to accept the alternative 
bid, but that as the Secretary of War in making leases under this 
statute may advertise or not, in his discretion, it would not be illegal 
to accept the alternative bid. Upon submission of the question to 
the Secretary of War for decision as to the course to be adopted in 
this class of cases, it was ordered that the highest legal bid be 
accepted after advertising in the present and future cases. 

(80-722, J. A. G., Feb. 10, 1917.) 



666 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 

BETIRED OFFICERS: Members of courts-martial. 

A retired officer having, by direction of the Secretary of War, 
been detailed as quartermaster under the act of April 23, 1904 (33 
Stat., 264), providing that — 

" The Secretary of War may assign retired officers of the Army, 
with their consent, to active duty in recruiting for service in connec- 
tion with the Organized Militia in the several States and Territories 
upon the request of the governor thereof, as military attaches, upon 
courts-martial, courts of inquiry and boards, and to staff duty not 
involving service with troops," was appointed, by an officer exercising 
general court-martial jurisdiction, as member of a general court- 
martial. 

lleld^ that the act of 1904 contemplates that the Secretary of War 
shall exercise his discretion with respect to the retired officer and the 
particular active duty to which such officer shall be assigned ; that 
it does not provide for a general active-duty status ; and that if it is 
desirable to have the officer act as a member of a court-martial the 
Secretary of War may assign him to active duty upon courts-martial 
in addition to his duties as quartermaster. 

Held further^ that although the appointment of the officer as a 
member of the court was irregular the trials on which he sat as a 
member should not be regarded as invalid, since he was competent in 
law to sit as a member of a court-martial. 

(88-613, J. A. G., Jan. 24, 1917.) 



VETERINARY CORPS : Credit for " governmental service." 

Upon an inquiry whether an assistant veterinarian appointed 
under the provisions of section 16 of the national defense act might 
receive credit for service in the Bureau of Animal Industry as " Gov- 
ernmental service," within the meaning of that section, 

Held^ that since the national defense act as a whole relates to mat- 
ters under the control of the War Department, it must be assumed 
that any term employed in the section above referred to which de- 
scribes service in a more general way than the term " military serv- 
ice " must be construed to cover other service under the War Depart- 
ment only, rather than to extend the operation of the statute to other 
departments of the Government, and therefore beyond the general 
purview of the act; and that, therefore, service in the Bureau of 
Animal Industry can not be counted as " Governmental service " 
within the meaning of section 16 of the national defense act. 

(6-133, J. A. G., Jan. 26, 1917.) 



VETERINARY CORPS: Persons included in. 

Upon inquiry whether veterinarians of Cavalry, Field Artillery, 
and the Quartermaster Corps who have been recommended for com- 
missions in the Veterinary Corps established by section 16 of the 
act of June 3, 1916, are to be considered members of the Veterinary 
Corps pending the issue of their commissions. 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 667 

Held, that the language of the section referred to defines the Vet- 
erinary Corps as consisting of "said veterinarians and assistant 
veterinarians," and these words can relate only to the veterinarians 
and assistant veterinarians whose appointments have been provided 
for in the preceding clauses. The words, " including veterinarians 
now in the service," are employed in the section only for the purposes 
(1) of limiting the number of officers who may b© appointed veteri- 
narians and assistant veterinarians under the terms of the section, 
and (2) of indicating that the discharge of veterinarians then in the 
service was not required ; and do not have the effect of including the 
" veterinarians now in the service " in the Veterinary Corps, which 
the section plainly constitutes through new appointment. 

(6-133, J. A. G., Jan. 26, 1917.) 



SUPPLY COMPANY: Commanding officer of. 

A captain of Infantry was appointed quartermaster of his regi- 
ment on March 17, 1913, effective March 18, 1913, and served con- 
tinuously as quartermaster and commanding officer of the supply 
company. Upon inquiry by the commanding officer of the regiment 
as to whether he must be relieved from such duty on March 17, 1917, 

IJcld^ that the commanding officer of the supply company in an 
Infantry regiment is a staff officer within the meaning of Army Regu- 
lations 249, and his tour of duty as such, taken in connection with 
any prior service as a regimental staff officer, can not exceed four 
years. 

(6-124.23, J. A. G., Feb. 17, 1917.) 



DECISIONS OF THE COMPTROLLER OF THE TREASURY. 

(Digests prepared in the office of the Judge Advocate General.) 

APPROPRIATIONS: Proceeds from sale of unsuitable quartermaster 
stores. 

It was proposed to sell, after due public notice, a large quantity 
of nonregulation shoes purchased in the emergency of tJie mobiliza- 
tion of the National Guard, but never issued because it became pos- 
sible to obtain shoes of the regulation pattern, and the question was 
presented whether the proceeds from such a sale could be deposited 
to the credit of the appropriation from which the shoes were pur- 
chased. 

Held, that the act of March 23, 1910 (33 Stat., 257), relating to the 
deposit of proceeds from sales of serviceable supplies or stores is not 
an authority for the sale of property, nor does it apply to property 
sold to the general public ; that there exists no authority of law for 
the sale of serviceable quartermaster supplies to the public generally, 
and that if the shoes be classed as " unsuitable for the public service " 
and sold as provided by section 1241, Kevised Statutes, the proceeds 
must, under the general legislation in section 3618, Eevised Statutes, 
be covered into the Treasury as miscellaneous receipts. 

(Comp. of the Treas., Feb. 19, 1917.) 



668 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

AKMY FIELD CLERKS: Allowances. 

Held^ that under the provisions of the statute providing for 200 
Army field clerks a selection was necessary, and the statute was not, 
therefore, self-executing; consequently such clerks were entitled to 
the allowances therein provided for only from the date of their 
acceptance of appointment as field clerks and not from the date of the 
act, August 29, 1916. 

(Comp. of the Treas., Jan. 26, 1917.) 



ENLISTED MEN: Pay status of retired soldier under an enlistment in 
the National Guard. 

In the case of an enlisted man on the retired list of the Regular 
Army, with pay status of the seventh enlistment period, who enlisted 
in the National Guard and, upon the President's call of June 18, 
1916, was accepted and mustered into the service of the United 
States, 

Held^ that the soldier did not lose his continuous-service-pay status 
while in the active service of the United States as an enlisted man 
of the National Guard under the President's call, but was entitled to 
the pay of his grade in the National Guard as of the seventh enlist- 
ment. 

Held further^ that the soldier forfeited his right to retired pay 
during the period he remained in the active service of the United 
States under his enlistment as a member of the National Guard. 

(Comp. Treas., Feb. 9, 1917.) 



CIVILIAN EMPLOYEES: Computation of holiday pay of pieceworker. 

In respect of the President's order of June 9, 1914, fixing four 
hours as a day's work on Saturdays from June 15 to September 15 of 
each year for all clerks and other employees of the Government, 
except as therein provided, 

Held^ that under the said Executive order four hours constitutes a 
day's work on Saturdays within the period specified in the order, and 
that, as all employees under the order are entitled to a full day's 
compensation for four hours' work, an employee paid on a piecework 
basis should be paid the same as if he had worked the full eight 
hours on Saturdays; that is to say, according to his average earnings. 

(Comp. Treas., Jan. 15, 1917.) 



CLAIMS: Private property destroyed. 

In the case of an officer whose private property was destroyed by 
fire in quarters rented by him at his own expenses and for his own 
convenience, 

Ileld^ that the officer was not entitled to compensation for the loss 
under the provisions of the act of March 3, 1885 (23 Stat., 350), 
which act was intended to compensate officers and enlisted men for 
the destruction of their property through the casualites usually 
attending military life and peculiar thereto, and was not intended 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 669 

to make the Government liable for such risks as are common to per- 
sons in civil life. 

(23 Comp. Dec, 411.) 

COMPTROLLER OF THE TREASURY: Jurisdiction. 

In the case of a disallowance by the auditor of $13.75 in a disburs- 
ing officer's accounts on account of an alleged overpayment to another 
officer, the latter refunded the amount upon the request of the dis- 
bursing officer but at the same time requested that the case be sub- 
mitted to the comptroller for a review of the auditor's action. The 
War Department having complied with the officer's request, 

Held^ by the comptroller, that the refundment having been made, 
the auditor was authorized to credit the disbursing officer's accounts 
Avith the sum so refunded, and that there was therefore no ground 
for an appeal as to such settlement. Advised, however, that the 
papers would be forwarded to the auditor who had authority to settle 
the officer's claim for repayment of the sum refunded by him, and 
that if after such settlement the officer be dissatisfied with the 
auditor's action he could appeal to the comptroller. 

(Comp. Treas., Jan. 29, 1917.) 



DECISIONS OF THE COUETS. 

(Digests prepared in the office of the Judge Advocate General.) 

HORSES : Claims for loss of, in military service. 

In a decision of the Court of Claims of January 17, 1916, in 
Grlffis V. United States, it was held, overruling decision in the Bardie 
rase (39 C. Cls., 250), that section 3482, Revised Statutes, as amended 
by the act of June 22, 1874, and subsequent acts, authorizing the re- 
imbursement of officers for horses lost in the military service, had 
expired by limitation and no longer authorized such reimbursement. 
(Bui. No. 8, W. D., 1916, p. 13.) Upon a rehearing, 

Held^ That only for the purposes of the act of 1874 was section 
3482, Revised Statutes, amended, and that after the act" of 1874 ex- 
pired by its limitation, section 3482, Revised Statutes, continued in 
force unaffected by the 1874 act and still remains in force. The 
former opinion in this case was modified accordingly. Section 3482, 
Revised Statutes, authorizes payment for horses killed in battle 
or lost under certain other described contingencies. 

{Frank C. Griffls v. United States, decided by C. Cls., Feb. 5, 1917.) 



PRIVATE PROPERTY: Destruction of by military forces. 

Where militia troops were ordered out by the governor of a State 
for the purpose of restoring peace and order in a county declared by 
him to be in a state of insurection, and the commanding officer of 
the militia ordered all saloons closed in a city in the troubled area 
between 7 p. m. and 8 a. m., with the warning that " the stock of 
liquors of any person or persons violating this rule will be destroyed 



670 DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 

and all violators severely punished," and the stock of liquors of a 
saloon keeper was destroyed by subordinate officers because of the 
violation of the order, 

Ileld^ by the Supreme Court of Montana in a civil action against 
the commanding officer and his subordinates for damages, that the 
officers could not justify their act as a military necessity, there having 
existed no state of war and the liquors not being needed for or 
devoted to the use of the troops; that the destruction could be justi- 
fied, if at all, only as a proper exercise of the police power of the 
State to maintain order, etc., but the destruction of private property 
under this power without compensation to the owner must be the 
last resort, available only in the presence of imminent danger and 
overwhelming necessity which brooks no delay, and that, as it was 
not alleged that the rioters were threatening or about to break into 
the saloon to obtain intoxicants, thereby making it necessary to de- 
stroy the stock to prevent excesses, such justification was not shown. 

Held further^ that the subordinate militia officers Avho merely fol- 
lowed their superior officer's commands in destroying the oflfending 
saloon keeper's stock were not subject to civil liability, since the order 
for the destruction of the property was one which the commanding 
officer might lawfully have made had the circumstances of the case 
warranted it, and, as it was valid on its face, the subordinate officers 
could not refuse obedience until they had investigated the legality 
of the order. Judgment against the commanding officer. 

{Herlihy v. Donohue, et al.^ Sup. Ct. of Montana, Nov. 10, 1916.) 



BULLETIN 18. 

Bulletin 1 WAR DEPARTMENT, 

No. 18. J Washington, Ajjril 6, 1917. 

The following digest of opinions of the Judge Advocate General 
of the Army, for the month of March, 1917, and of certain decisions 
of the Comptroller of the Treasury and of courts, together with notes 
on military justice prepared under the direction of the Judge Advo- 
cate General, and a compilation of Federal and State laws prohibit- 
ing discrimination against the uniform, is published for the informa- 
tion of the service in general. 
[2526413 B— A. G. O.] 
By order or the Secretary of War : 

H. L. SCOTT, 
Major General^ Chief of Staff. 
Official : 

H. P. McCAIN, 

The Adjutant General. 



OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

AVIATION PAY: Officers' Reserve Corps. 

Upon reference for opinion as to whether or not officers of the 
aviation section, Signal Officers' Reserve Corps, when assigned to 
duty requiring them to make regular and frequent aerial flights, are 
entitled to the extra pay authorized under section 13 of the national 
defense act, approved June 3, 1916. 

Held.^ that as section 39 of the same act provides that Reserve 
Corps officers, when ordered " to duty with troops or at field exercises, 
or for instruction," when provision is made therefor, shall, while so 
serving, " receive the pay and allowances of their respective grades 
in the Regular Army," and as section 13 of said act specifically pro- 
vides, with respect to aviation officers, that " each aviation officer au- 
thorized by this act shall, while on duty that requires him to partici- 
pate regularly and frequently in aerial flights, receive an increase of 
twenty-five per centum in the pay of his grade and length of service 
under his commission," a Reserve Corps officer of the aviation sec- 
tion assigned to active duty requiring him to make regular and fre- 
quent aerial flights is entitled to receive the increased pay authorized 
for such duty, as such officer comes within the description, " each 
aviation officer authorized by this act." 

(6-301, J. A. G., Mar. 12, 1917.) 



CHAUFFEimS : Procurement of local licenses. 

The decision of the Comptroller of the Treasury dated January 10, 
1917 (23 Comp. Dec, 286), is conclusive that existing Federal appro- 

671 



672 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

priations are not available for the payment of license fees of chauf- 
feurs for the operation of Government motor vehicles. Whether the 
States have the power to require such chauffeurs to provide them- 
selves with licenses at their own expense, such expense being the cost 
of issuing the licenses by the State, has not been authoritatively set- 
tled, but 

II eld ^ that the Panama Canal authorities, having no power not con- 
ferred by Congress, clearly are not authorized to require individuals 
to obtain licenses as a prerequisite to the operation of Government 
vehicles, no such power having been granted by Congress. Sug- 
gested, however, that as a rule the Goverrmient should, in the interest 
of public safety and as a matter of comity, use diligence to see that 
its chauffeurs meet the usual local tests as to qualification, etc., and 
should provide them with evidence that they have been found 
qualified. 

(92-525, J. A. G., Mar. 16, 1917.) 



CIVILIAN EMPLOYEES: Stoppages to reimburse TTnited States. 

Where an applicant for enlistment was furnished transportation 
and subsistence from a recruiting office to the recruit depot and, in- 
stead of presenting himself for enlistment at the latter place, disap- 
peared therefrom and afterwards obtained employment as a laborer 
at the Rock Island Arsenal, 

Ileld^ that aside from any criminal action that might be taken 
against the man on a charge of misappropriating Government prop- 
erty, deduction should be made from his pay earned as laborer at the 
arsenal to reimburse the United States the amount expended on him 
in connection with his application for enlistment, this being war- 
ranted whether his action be regarded as a breach of contract or as 
the procurement of the expenditures under false pretenses. 

(72-510, J. A. G., Mar. 21, 1917.) 



CLAIMS: Use of private property in public service. 

Claim was made by certain National Guard officers for reimburse- 
ment of expenses incurred for gasoline and lubricating oil for motor 
cars belonging to the State and to militia organizations and to indi- 
viduals used in the service of the United States. None of such cars 
had been formally transferred to the Federal service, but were taken 
with the organizations upon their being called into the Federal serv- 
ice without the knowledge or consent of the Quartermaster General, 
who had made provision for the hiring of motor cars when necessary. 

Ileld^ that the claim could not be allowed in the absence of a show- 
ing that the expense was incurred as the result of an emergency, it 
being a well-settled principle that the United States can not be made 
a debtor without its knowledge and consent, and that, except for cer- 
tain personal expenses, officers of the Government are not entitled to 
reimbursement for expenditures made from their own private funds 
to pay legitimate expenses of the Government unless such expendi- 
tures are made under urgent and unforeseen ])ublic necessity (12 
Comp. Dec, 308),. If at any time the transportation facilities fur- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 673 

nished by the GoA-ernment failed, and it became necessary to use the 
automobiles belonging to the State and to individuals and organiza- 
tions in the service of the United States and they were so used in 
pursuance of competent orders, under such cir-cumstances the ex- 
penses for their maintenance and operation would be a proper charge 
against the Government and payable from Army appropriations. 
Such obligation would arise under an implied contract, and no formal 
contract mine pro tunc, such as suggested in this case would be neces- 
sary. But in no case where there was not an absolute emergency 
Avhich required the practical taking over of the motor cars by the 
Ignited States for operation under its supervision can reimbursement 
legallv be made for anv expense in connection therewith. 
(18-600, J. A. G., Feb. 24, 1917.) 



CONTKACTS: Extra work due to faulty design. 

The contractors for the construction of a wharf submitted a claim 
for extra work required, before the completion of the wharf, to repair 
damages thereto caused by the sliding of the bank carrying the foot- 
ings of the piles outward, causing the outer end of the wharf to settle 
below the required grade. At the time of the damage the wharf was 
completed, with the exception of certain braces, which could not be 
placed within the cont].-act period because of the high water. The 
wharf was constructed strictly in accordance with the specifications 
and at the location designated by the post quartermaster. The con- 
tractors were required, against their protest, to remove the damaged 
portion of the wharf and rebuild the same strictly in accordance 
with the contract, and they have submitted their claim covering the 
extra work involved, on the ground that they were in no way respon- 
sible for the loss. The district engineer officer reports that the com- 
pleted wharf, while not in immediate danger of loss, is liable to 
settle after each high water, and that it will probably be necessary to 
uncouple the floor of the same and raise it each year. 

Held, in view of the facts stated above, that the case is one where 
the damages appear to be the result of defective design, and that 
there being nothing in the contract which could be fairly construed 
as making the contractors responsible for the design, the extra work 
v/as due to the fault of the Government in requiring the work to be 
done on plans which were defective for the location selected ; citing 
9 C. J., 752, and 8 L. E. A., N. S., 1171. 

(76-700, J. A G, Mar. 23, 1917.) 



CONTIIACTOP.S : Relief of. 

A contractor for furnishing packing and waste applied for the can- 
cellation of its contract on the ground that following the making 
thereof the demand for skilled labor and for the materials required 
for filling the contract, due to the continuation of the war in Europe, 
made it practically impossible for the contractor to execute the con- 
tract, and that the contractor, a company of limited means, would 
be required to suspend business unless relief be granted. The con- 
tract was an absolute one, binding the contractor to furnish the sup- 
93668°— 17 43 



674 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

plies covered thereby as ordered to meet the requirements therefor 
during the fiscal year, and contained no exception under which the 
contractor would "be entitled to relief on the ground applied for. 

Held^ that the facts stated did not make out a case of impossi- 
bility of performance such as would entitle the contractor to relief; 
the established rule of law in such cases being where an agreement 
is not impossible in its nature but is impossible in fact by reason of 
particular circumstances, such impossibility wall not excuse the fail- 
ure to perform an unconditional contract, whether it exists at the 
date of the contract or arises from events which happen afterwards; 
still less will unexpected difficulty or inconvenience short of impossi- 
bility serve as an excuse. Wald's Pollock on Contracts, Williston's 
edition, 1906, page 527, and cases cited in note on page 528. 

Held^ also, that the Secretary of War is without legal authority 
to grant relief on the ground of hardship, and that relief can only 
be given where the case falls within a rule of law under which the 
contractor is entitled to relief, or where relief is authorized by Con- 
gress. (Dio-. Op. J. A. G., 926, and notes citing opinion of Atty. Gen. 
Black in 9 Op., 81) 

(76-600, J. A. G., Mar. 10, 1917.) 



EIGHT-HOXJE, LAW: Claim for overtime. 

A civilian, employed with his team at a mobilization camp for the 
use of troops called into the Federal service, submitted a claim for 
pay for " overtime," in excess of eight hours a day. He was em- 
ployed with the understanding that he would receive the same rate 
of paj^ as the other teamsters, which was $5 a day. The other team- 
sters neither claimed nor were paid for overtime in excess of eight 
hours a day. 

Held^ that his claim was not pavable for the following reasons: 

The act of August 1, 1892 (27' Stat., 310), expressly permits the 
employment of " laborers and mechanics " for more than eight hours 
a day in case of " extraordinary emergency-" The mobilization of 
the militia troops was an emergency within the meaning of this act. 
The Federal eight-hour statutes do not regulate compensation {TJ . S. 
V. Martin, 94 U. S., 400), and whenever, therefore, it is lawful to 
employ a laborer or mechanic for more than eiglit hours a day, the 
per diem compensation may be fixed by agreement for the lengthened 
day. The claimant, having been promised upon his employment the 
same compensation that was paid to the other teamsters, had notice 
of what constituted a day's work under his emplovment, and was, 
therefore, entitled to the same compensation as the other teamsters 
received and no more, provided that for the time, if any, which he 
worked in excess of the others, he would be entitled to pro rata 
compensation. 

(58-150, J. A. G., Feb. 27, 1917.) 



ENLISTED MEN: Discharge for convenience of the Government. 

An honorable discharge of an enlisted man because of disability 
is a discharge for tlie convenience of the Government, and if the 
soldier has served more than one-half of his enlistment prior to such 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEEAL. 675 

discharge, he is entitled, in case he recovers and reenlists, to the 
benefits of the act of May 11, 1908 (35 Stat., 110), relating to con- 
tinuous-service pay and bonus for reeniistment, according to the con- 
ditions therein prescribed. 

(72-220, J. A. G., Mar. 22, 1917.) 



ENLISTED MEN: iDxanaination for commission, National Guard service. 

On the question whether an enlisted man of the National Guard, 
proposing to transfer to the Regular Army, could count his Na- 
tional Guard service as a part of the required service to qualify him 
for the examination. 

Held, that while the act of July 30, 1892 (27 Stat., 336), specified 
service " in the Army," the service described by this term undoubtedly 
meant service in the Regular ilrmy, and that Federal service by a 
National Guard soldier can not therefore be credited to qualify the 
soldier for the examination. This view is supported by the act of 
February 2, 1901, section 28 of which provides for the same recog- 
nition to be given to volunteer as to regular service, a provision which 
would be unnecessary if the term " in the Army " does not mean serv- 
ice in the Regular Army, inasmuch as the act of xVpril 22, 1898 (30 
Stat., 361), defines the term "Army" as including the Volunteer 
Army. 

(Gl-213, 61-310, J. A. G., Mar. 3, 1917.) 



ENLISTED BESERVE CORPS: Pay of civil employee. 

On the question whether a civil employee of the War Department 
who enlists in the Engineer Enlisted Reserve Corps can be given 
leave of absence with pay in his civil status while he is receiving 
training as a member of said corps and at the same time receive pay 
in his military status, 

lielcl^ that there can be no legal objection to his receiving the com- 
pensation of both places if the training is performed within his an- 
nual leave allowance, provided the combined compensation of both 
places does not exceed the sum of $2,000, so as to come within the 
prohibition of section 6 of the act of May 10, 1916, as amended (39 
Stat., 582) ; that as the two positions are entirely distinct, each with 
its own compensation and duties, the case does not come within the 
prohibition of sections 1763, 1764, and 1765, Revised Statutes; and 
that the military position is not an office within the meaning of the 
act of July 31, 1894 (28 Stat., 205), so as to preclude a civil employee, 
if his salary should be $2,500 or more, from being a member of the 
Enlisted Reserve Corps. 

(6-302, J. A. G., Mar. 8, 1917.) 



LIGHTHOUSE SERVICE: Status of employees upon being transferred to 
the War Department in time of national emergency. 

In case of a transfer of the Lighthouse Service to the War Depart- 
ment in time of national emergency, as provided by the act of August 
29, 1916 (39 Stat., 602), 



676 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

Held, that such employees will retain their civilian status and that 
the employees' compensation act of September 17,^ 1916 (39 Stat., 
742), will be applicable to them in case of their injury or death in 
line of duty ; and further, that in case of their capture by the enemy, 
the principles of international law relating to prisoners of war no 
doubt will apply. 

(lG-310, J. A. G., Mar. 9, 1917.) 



NATIONAL GUASD: Payment of, for State duty under call of Governor, 
Held, the President alone has authority to call forth the National 
Guard of the several States to protect railroads and factories as ir.- 
strumentalities of the Federal Government. When the States them- 
selves call forth such forces to guard such plants, they are exercising 
their own police power in the duty of protection which they owe to all 
property within their borders. While Congress may reimburse the 
States for the resulting benefit to the United States, tlie National 
Guard so called forth is not placed in the service of the United States, 
and neither the War Department nor any official thereof has au- 
thority to call for such service or funds to reward it when rendered. 
(58-100, J. A. G., Mar. 12, 1917.) 



NATIONAL GUARD: Power of President to call forth the National Guard 
to guard ammunition plants and railroads. 

Ileld^ when interference with the channels of postal, commercial, 
and military communication, or with other instrumentalities of the 
Federal Government, is apprehended, the President has power to 
call forth the militia to forestall such interference. This power is a 
concomitant of his constitutional duty to see that the laws are faith- 
fully executed. The method for its exercise is prescribed in section 3, 
act of May 27, 1908 (34 Stat., 402), which authorizes the President 
to call forth such number of the militia as he may deem necessary 
to execute the lav/s, subject only to the condition that the available 
regular forces be employed for this purpose before recourse is had to 
the militia. 

(58-100, J. A. G., Mar. 12, 1917.) 



NATIONAL GUARD: Travel expenses in responding to President's call. 

An enlisted man of the National Guard applied for reimburse- 
ment of his travel expenses incurred in reporting at his company 
rendezvous for Federal service under the President's call of June 
18, 1910. 

Held^ that there is no statutory authority for the reimbursement of 
such expenses. 

(58-700, J. A. G., Mar. 17, 1917.) 



OFFICERS: Transfer of, from line to Engineer Corps. 

On the question whether or not an officer of the line of the Army 
may be transferred to the Corps of Engineers under section 25 of the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. G77 

national defense act of June 3, 1916, authorizing the transfer between 
branches of the line of the Army for the purpose of lessening in- 
equalities of promotion due to increases under said act, 

II eld ^ tliat such transfer is not authorized. While engineer officers 
ser\ing Avith engineer troops are a part of the line of the Army, 
section 22 of the act of February 2, 1901, prescribing that " the en- 
listed force of the Corps of Engineers and the officers serving there- 
with shall constitute a part of the line of the Army," they hold their 
offices in the Corps of Engineers and are merely detailed on duty 
with troops ; that such vacancies as may be said to occur in the com- 
missioned personnel of troop organizations are not filled by appoint- 
ment to office but by the detail of a person holding office in the Corps 
of Engineers; and that the transfer of a line officer to the Corps of 
Engineers would not fill a vacant office in the line, but would fill a 
vacant office in a staff corps. 

(6-226, J. A. G., Mar. 24, 1917.) 



OFFlCEE-S: Transfer of; personal examination. 

On the question whether section 25 of the national defense act of 
June 3, 1916, in prescribing a '' personal examination " by the ex- 
amining board " of such officer and of his official record," requires 
the bodily presence of the officer before the board, it being pointed 
out that such interpretation would involve in many cases extensive 
journeys at very great expense, 

Ileld^ that the word "personal" may be used either subjectively 
or objectively; that, with reference to the official record, the word 
is evidently used subjectively and relates to the board, and that if the 
word is so construed with reference to the offxcer it would not require 
the bodily presence of the candidate. As the meaning of the term is 
doubtful, in deference to the rule that where the language is doubtful 
a -construction which gives it reasonable effect is preferred to one 
which results in very great inconvenience {United States v. Fisher^ 
2 Cranch, 286), the statute in this case should be construed so as not 
to require a candidate to appear in person before the board w^hich 
makes recommendations as to his transfer. 

(64-221.4, J. A. G., Mar. 12, 1917.) 



0FFICEE3, DEITTAL CORPS: Retirement of, upon failure to pass physical 
examination for promotion. 

The question was presented as to the proper disposition of a first 
lieutenant, Dental Corps, who appeared before an examining board 
to determine his fitness for promotion under the provisions of sec- 
tion 10 of the national-defense act and was found by the board to 
be disqualified both physically and mentally. 

Held, that under the provision of said section which makes appli- 
cable to him " all laws relating to the examination of officers of the 
Medical Corps for promotion." he is, by reason of liaving failed to 
pass his physical examination for promotion, entitled to be retired 
with the rank of captaiii. 

(6-227.3, J. A. G., Mar. 20, 1917.) 



678 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

PORTO SICO BEGIMENT : Detached service of officers. 

Upon reference to the Judge Advocate General for opinion as to 
the eligibility of a first lieutenant of the Porto Eico Regiment of In- 
fantry for detail as a student officer in the Ordnance Department 
under section 21 of the national-defense act of June 3, 1916, pro- 
viding that captains and lieutenants of said regiment " shall also be 
eligible for such detached service, transfer, or promotion to duty 
with other organizations as may be approved by the Secretary of 
War; but vacancies created by such appointments of officers shall not 
be filled by promotions or appointments." 

Held^ that as section 12 of the same act clearly contemplates that 
lieutenants detailed as student officers in the establishments of the 
Ordnance Department shall be eligible, if they satisfactorily com- 
plete the course of instruction, for detail to fill vacancies in the 
Ordnance Department for the period of four years and for redetail 
for like periods during their commissioned service, and provides also 
that vacancies resulting from details to vacancies in the Ordnance 
Department shall be filled by promotion or appointment, while, as 
to details for detached service of captains and lieutenants of the 
Porto Eico Eegiment it is expressly provided that they shall not be 
filled by promotion or appointment, it must be hel^d that such officers 
of said regiment are not eligible for detail to vacancies in the Ord- 
nance Department or for detail as student officers in the ordnance 
establishments for the reason that such details contemplate eligibility 
for subsequent details in the ordnance establishment. 

Held further^ that the provisions of section 21 would be given 
reasonable effect by limiting their operation to details for detached 
service other than the filling of vacancies in respect to which the law 
provides that details thereto shall create vacancies to be filled by pro- 
motion or appointment. 

(6-260, J. A. G., Mar. 10, 1917.) 



PimCHASE OF SUPPLIES: Exchange of typewriters and subscriptions 
to periodicals. 

The general statutory provisions authorizing the exchange of 
typewriters, adding machines, and other similar labor-saving de- 
vices (sec. 5 of the general deficiency appropriation act, approved 
Mar. 4, 1915, 38 Stat., 1161) and the advance payment of subscrip- 
tions to periodicals (sec 5, legislative, executive, and judicial appro- 
priation act, approved Mar. 4, 1915, 38 Stat., 1049), held applicable 
to all branches of the public service for which appropriations are 
made by Congress, no specific statutory authority for the purpose 
in connection Avith the appropriations being deemed necessary, 

(56-120, J. A. G., Mar. 23, 1917.) 



DECISIONS OF THE COMPTEOLLER OF THE TEEASTJEY. 
(Di.jj:ests i)repared in tlio ofRe(> of the .Tudse Advocate General.) 

CIVILIAN EMPLOYEES: Holiday pay. 

Where a tentmaker was given a "temporary" appointment pend- 
ing the procurement of an eligible list by the Civil Service Commis- 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 679 

sion, his employment, however, being continuous and for an in- 
definite period. 

Held, that he was entitled to the same right to pay for holidays as 
if his employment had been permanent, the words " temporary " and 
" permanent " in such cases having relation to the civil service 
status and not necessarily to the continuity or permanence of the 
employment. 

(Comp. Treas., Mar. 10, 1917.) 



CLAIMS: Rental for lands purchased, between date of execution of deed and 
of final payment. 

Where the United States is in possession of land under an annual 
lease, and during the life of the lease the land i^ purchased and 
deed executed but payment is not made until several months there- 
after owing to delay in the approval of the title papers by the At- 
torney General, 

Held, that the delivery of the deed of conveyance changed the re- 
lation of the parties from landlord and tenant to that of vendor and 
vendee; that upon final acceptance by the United States the title 
related back to the date of the delivery of the deed, and that there- 
fore payment of a clfiim for rental was not authorized, since the 
United States could not be expected to pay rent on property of 
which it held the title. 

(Comp. Treas., Mar. 12, 1917.) 



CONTRACTS: Purchase of supplies for Army in absence of appropriations. 

In case of the purchase of supplies, etc., for the Army, under sec- 
tion 3732, Eevised Statutes, as amended (34 Stat., 255), in the absence 
of appropriations, 

Held., that there is no objection to the delivery of vouchers therefor 
to the contractors bearing a dated and signed statement to the fol- 
lowing effect: 

"This account is not payable at this time by reason of the fact 
that no funds are now available, owing to the failure of Congress to 
pass the general deficiency bill. Payment will be made to the con- 
tractor named on the voucher when funds become available. This 
is the original voucher, and no other voucher will be issued covering 
this transaction except on conclusive proof of the loss of the original." 

Further suggested, as the better plan, that any claim or so-called 
voucher should be sent to the Auditor for the War Department for 
settlement, in which case the auditor " can certify the amount due and 
transmit his certificate to the Secretary of the Treasury immediately. 
The claimant can then be furnished a certified copy of the auditor's 
certificate, which will be evidence that he has a certain, liquidated, 
and conclusive balance due from the United States, payable imme- 
diately upon the making of an appropriation by law. The fact as 
to future appropriations will appear in the certificate." 

(Comp. Dec, Mar. 22, 1917.) 



DEATH GRATUITY STATUTE: Not applicable to Army Nurse Corps. 

The act of May 11, 1908, as amended (35 Stat., 108 ; id. 735), relat- 
ing to the paym.ent of death gratuities under the conditions therein 



680 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENEKAL. 

prescribed is limited to " any officer or enlisted man on the active list 
of the Army." 

Ueld^ that this statute does not apply to members of the Army 
Ts'iirse Corps; that while the words "officers and enlisted men" may 
be used in an act of Congress with a broader meaning than the words 
usually imply, the context of the act here in question, as well as the 
policy back of the law, indicate that a meaning broader than that 
usually attached to those words was not intended, this conclusion 
being justified by the fact that the act specifically provides that pay- 
ment of the amount therein authorized shall be made to the widow 
or any other persons previously designated by liim^ and the further 
fact that as the Army Nurse Corps was in existence at the time when 
the act of May 11, 1908, was passed, if Congress had intended to 
include within its operation the members of the Army Nurse Corps, 
or any other civilians, it would doubtless have used language more 
indicative of that purpose. 

(Comp. Treas., Mar. 24, 1917.) 



MEDICAL TBEATMENT : Soldier in private hospital at time of muster out. 

Upon the question whether in the case of certain enlisted men of 
the National Guard remaining in a private hospital for treatment 
after the muster out of their organization, payment for the hospital 
treatment could be made from public funds. 

Held., that the discharge of an enlisted man of the Organized 
Militia or National Guard in the actual service of the United States 
who is a patient in a hospital at the time of the actual discharge (on 
or after formal muster out) from the service of the United States 
of the organization of which he was a member takes effect on the day 
he is chargeable with receipt of notice of such muster out, unless it be 
clearly shown that he has been held by competent authority to further 
military service; that the law authorizes payment for the medical 
on re and treatment and the subsistence " of officers, enlisted men, and 
civilian employees of the Army " in private hospitals, whenever such 
care and treatment can not be given in a military hospital, and that 
if any such officers, enlisted men, and civilian employees are retained 
and cared for as patients in private hospitals after their discharge 
from the military service of the United States takes effect, the claim 
in each case should be settled upon the facts adduced ; such claim to 
be sent to the Auditor for the War Department for examination and 
settlement. 

(Comp. Treas., Feb. 3, 1917.) 



DECISIONS OF THE COURTS. 

(Digests prepared in the oflSce of the Judge Advocate General.) 

CLAIMS: Loss of private property in the military service. 

Where a claim for the loss by a soldier of private property in 
the military service was not presented to the accounting officers of 
the TreasurA^ within two years, as prescribed by the act of March 3, 
1885 (23 Stat., 350), and suit was thereafter brought in the Court 
of Claims to recover the value of the property, 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 681 

Held^ that no claim having been made within the time fixed by 
the statute, the court was without jurisdiction. 

{Thomas C. Goodman v. The United States^ decided by Court 
of Claims, Feb. 26, 1917.) 

EVIDENCE: Corroboration in case of confession. 

On the trial of a defendant for knowingly receiving in pledge 
from a soldier an automatic pistol, the property of the United 
States, in violation of section 35 of the Federal criminal code, 

Held^ that the confession of the defendant that he received the 
pistol in pledge from a soldier was sufficiently corroborated to justify 
the submission of the case to the jury by evidence showing that the 
pistol was issued to a soldier, and that it was found in the possession 
of defendant, whose place of business was very near the reservation 
on which such soldier was stationed ; and further, that evidence that 
the pistol was found in defendant's possession was sufficient to sus- 
tain a verdict of guilty under Revised Statutes 1242 and 3748. 

Held further^ that evidence offered by defendant to show that 
the pistol had been charged to the soldier was properly excluded 
where the evidence did not show that he was the owner at the time it 
was pledged, but that the charge was made after its loss was known. 

{Bolland v. United States, 238 Fed., 529.) 



PUBLIC PROPERTY: Appropriation of, to private use. 

An applicant for enlistment, who falsely represented that he had 
had no previous service in the Army and was furnished subsistence 
and transportation to the recruit depot where it was ascertained that 
he had been dishonorably discharged from the Army and was not 
eligible for reenlistment, was indicted for applying to his own use 
subsistence and supplies furnished to be used for military service, in 
violation of section 36 of the Federal Criminal Code, which declares : 

" Whoever shall steal, embezzle, or knowingly apply to his own 
use, or unlawfully sell, convey, or dispose of any ordnance, arms, 
ammunition, clothing, subsistence, stores, money, or other property 
of the United States, furnished or to be used for the military or naval 
service, shall be punished," etc. Upon a demurrer, 

Held, by the court, that the charge against defendant did not 
constitute a violation of the statute ; that the section does not apply 
to one who has used the property for the very pur]3ose for which it 
was given ; that is to say, one who has used for the purpose of sub- 
sistence the property given him for subsistence and has used for 
transportation to a designated place the property given him to be 
used for transportation to that place. 

{U. S. V. Buchanan, 238 Fed., 877.) 



NOTES ON ADMINISTEATION OF MILITAEY JTJSTICE. 

(Prepared under the direction of the Judge Advocate General of the Army 
upon the review of records of general courts-martial trials.) 

SENTENCES: Retention of soldiers, guilty of offenses involving moral tur- 
pitvide, not favored. 

(1) A soldier, who was convicted of forgery and uttering forged 
instruments on four counts, was sentenced to two months' imprison- 



682 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 

ment. The case was returned to the court for reconsideration of its 
sentence. The court adhered to its former sentence. It was again 
returned, with the result that the court then imposed a sentence of 
two months' confinement and the forfeiture of two-thirds of his pay 
j)er month for a like period, which the provisional division com- 
mander in his review characterized as a travesty on justice. 

(2) A soldier, who was convicted of larceny of Government prop- 
erty, was sentenced to three months' imprisonment, which the pro- 
visional division commander approved even without comment. 

(3) A soldier, convicted of fraudulent enlistment for concealing 
from the recruiting officer the fact of his dishonorable discharge 
from a former enlistment on account of embezzlement, was sentenced 
to dishonorable discharge and one year's confinement, which was re- 
duced to confinement for four months and forfeiture of one-half of 
his pay per month for a like period. 

These cases indicate to the service as a whole and to the public that 
courts of officers and reviewing authorities are of the opinion that 
enlisted men convicted even of felonies may be retained in the service. 
Under the law, a man so convicted can not be enlisted. The War De- 
partment has deemed it of such importance to keep out of the service 
men convicted of even less serious offenses that have called for im- 
prisonment in a reformatory, jail, etc., that regulations have been 
issued prohibiting such enlistments. If a man is found guilty of an 
offense of this sort, he must be regarded as having placed himself 
in a situation where mitigating circumstances will not serve to hold 
him in the service, though they may be considered for the purpose of 
reducing or wholly remitting any other part of the sentence imposed 
upon him. A standard lower than this would be extremely harmful 
to the service. Any community in which a regiment is stationed, 
knowing that a single convicted thief is amongst its personnel, are 
disposed to judge its standard by the individual. No sympathy for 
an accused should therefore, in any case, be allowed to weigh to the 
extent of retaining in the service soldiers convicted of offenses in- 
volving moral turpitude. Clemency can not restore to them the 
respect of their associates or the public, nor eliminate the scandal 
and suspicion that attach to the service by the retention of such men 
in the Army. 

The above-recited principles apply as well to the National Guard 
in the service of the United States as to the Eegular Army. 



HEARSAY EVIDENCE: Not admissible because made by an oflacer in 
course of an official investigation. 

In the case under consideration — and in others the same miscon- 
ception crops out — the Judge Advocate contended that the officer 
Avho preferred the charges, when sworn as a witness, could testify 
to all facts that he had gained from the investigation, whether hear- 
say or not. This, of course, was error. (See Manual for Courts- 
Martial, par. 221.) 

OBJECTION TO MEMBER OF COITIIT: Can be made at any time in pro- 
ceedings. 
After all the evidence had been taken in this case, counsel for the 
accused stated: 



DIGEST OF OPINIONS OP THE JUDGE ADVOCATE GENERAL. 683 

" I should like to call the court's attention to the fact the testi- 
mony has brought out the fact that one of the members of the court is 
vitally interested in this case; he has conducted the search and is 
absolutely familiar with the details and has probably formed his 
own opinions in the matter. I appeal to the members of this court 
who are lawyers that the member of the court is incompetent in that 
he is biased in the case. 'We did not know that at the time of the 
introduction of the facts, otherwise would have objected at the start. 
We do not think the gentleman is fit to sit on the case, but it has 
developed since the case opened that a member of the court is incom- 
petent." 

The president ruled that it was too late to object to the member 
sitting on the court, stating that the counsel for the accused had the 
right to attack the legality of the court at the opening of the case 
Counsel insisted on his right to object at that time, and was over- 
ruled by the court. 

The ruling of the court was error, as the accused would have had 
the right to enter an objection to any member of the court up to the 
last minute upon the statement, and proof if required, that the facts 
upon which the objection was based were not within his knowledge 
at the time when such objection is ordinarily made. Of course, ob- 
jection should be made on these grounds as soon as the knowledge 
upon which it is based has come into the possession of the accused. 



FEDERAL AND STATE LAWS PROHIBITING DISCRIMINATION 
AGAINST THE UNIFORM. 

1. ITNITEB STATES. 

Hereafter no proprietor, manager, or employee of a theater or 
other public place of entertainment or amusement in the District of 
Columbia, or in any Territory, the District of Alaska, or insular 
possession of the United States, shall make, or cause to be made, any 
discrimination against any person lawfully wearing the uniform cf 
the Army, Navy, Ke venue- Cutter Service, or Marine Corps of the 
United States because of that uniform, and any person making, or 
causing to be made, such discrimination shall be guilty of a misde- 
meanor, punishable by a fine not exceeding five hundred dollars. 
(Act of Mar. 1, 1911, 30 Stat., 9G3.) 



2. CONNECTICUT. 

Every person who shall subject or cause to be subjected any other 
person to the deprivation of any rights, privileges, or immunities 
usuallj^ enjoyed by the public, on account of membership in the 
military or naval service of this State or of the United States, or on 
account of the wearing of the uniform of such service, or who, on 
account of such membership or the wearing of such uniform, shall 
deprive any other person of the full and equal enjoyment of any 
advantages, facilities, accommodations, amusement, or transporta- 
tion, subject only to the limitations established by law and applicable 
alike to all persons, or who, on account of such membership or the 
wearing of such uniform, shall discriminate in the price for the 



684 DIGEST OF OPIlSriONS OF THE JUDGE ADVOCATE GENEEAL. 

enjoyment of any such privileges, shall forfeit and pay to the person 
injured thereby double damages, to be recovered in any court of 
competent jurisdiction within this State. (Public acts, 1909, ch. 192.) 



3. FLORIDA. 

No person sliall prohibit or refuse entrance to any officer or en- 
listed man of the Army or Navy of the United States or of the 
National Guard of this State into any public entertainment or place 
of amusement because such officer or enlisted man is wearing the 
uniform of the organization to which he belongs. * * * 

Any person violating the provisions of the foregoing paragraphs 
of this section shall be deemed guilty of a misdemeanor, and, upon 
conviction before a court of competent jurisdiction, may be fined not 
exceeding two hundred dollars, or sentenced to a confinement for not 
exceeding six months, or both, at the discretion of the court. (Com- 
piled laws, 1914, sec. 731.) 



4. KENTUCKY. 

Nor shall the owner, proprietor, manager, or employee of any 
hotel, opera house, skating rink, or any other place of public amuse- 
ment or entertainment deny admission to, or in any way, discriminate 
against, any member of the Organized Militia of the United States, 
or of the United States Army, Navy, or Marine Corps, on account 
of his being in the uniform of his rank and service. * * * Any 
person violating any provision of this section shall, upon conviction, 
be punished bva fine not exceeding three hundred dollars. (Stat- 
utes, 1915, secr2G60.) 

5. IVIAIIYLAND. 

it shall be unlawful for the owner, or the owner's agent, whatever 
mav be the latter's designation, of any place of amusement or of 
recreation otherwise opened to the general public, admission to which 
is free or otherwise, to refuse admission to or exclude from the said 
place of amusement or of recreation, any officer or enlisted man of 
the United States Army, Navy, IMarine Corps, Revenue-Cutter Serv- 
ice, the National Guard of this State or of any State, Territory, and 
of the District of Colum.bia, by reason of such officer or enlisted 
man being in uniform, and any such owner, or agent aforesaid, who 
upon conviction before a court of criminal jurisdiction shall be 
found guilty of a violation of the provisions of this section shall be 
deemed, and he is hereby, declared to be guiltv of a misdemeanor 
and shall be fined a sum not exceeding five hundred dollars or im- 
prisoned for not more than six months, or both, in the discretion of 
the court. (Annotated Code of Maryland, vol. 3, art. 6.5, sec. 83.) 



6. MASSACHUSETTS. 



No proprietor, manager, or employee of a theater or other public 
place of entertainment or amusement shall make, or cause to be made, 
any discrimination against any person lawfully wearing the uniform 
of the Army, Navy, Eevenue-Cutter Service, or Marine Corps of the 



DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 685 

United States because of that uniform, and any person making, or 
causing to be made, such discrimination shall be guilty of a misde- 
meanor, punishable by a fine not exceeding five hundred dollars. 
(Acts and resolves, 1911, ch. 400.) 



7. MINNESOTA. 

It shall be unlawful for any common carrier, innkeeper, or pro- 
prietor or lessee of any place of public amusement or entertainment, 
or any agent, servant, or representative of any such common carrier, 
innkeeper, proprietor or lessee as aforesaid, to debar from the full 
and equal enjoyment of the accommodations, advantages, facilities, 
or privileges of any public conveyance on land or water or any inn 
or of any place of public amusement or entertainment, any person in 
service in the Army, Navy, Marine Corps, or Revenue-Cutter Service 
of the United States, or of the National Guard or naval service of 
this State, or otherwise in the military or naA^al service of the United 
States, or of this State, wearing the uniform prescribed for him at 
that time or place by law, regulation of tlie service, or custom, on 
account of his wearing such uniform, or of his being in such service. 

Any person who is debarred from such enjoyment contrary to the 
jH'ovisions of section 3998 of this act shall be entitled to recover in 
an action on the case from any corporation, association, or person 
guilty of such violation, his actual damages and $100 in addition 
thereto; and evidence that such person debarred was at the time 
sober, orderly, and willing to pay for such enjo3mient in accordance 
with rates fixed therefor for civilians, shall be prima facie evidence 
that he was debarred on account of his wearing such uniform or of 
his being in such service. 

Any person violating anv provision of this act shall be guiltv of a 
misdemeanor. (General Statutes, 1913, sees. 3998, 3999, 4000.") 



8. NEW HAMPSHIEE. 

Hereafter no proprietor, manager, or employee of a theater or 
other public place of entertainment or amusement in the State of 
New Hampshire shall make or cause to be made any discrimination 
against any person lawfully wearing a uniform of the Army, Navy, 
Eevenue-Cutter Service, or Marine Corps of the United States, or of 
the militia of this State, because of that uniform; and any person 
making or causing to be made such discrimination shall be guilty 
of a misdemeanor and punishable by a fine not exceeding one hun- 
dred dollars. (Public Statutes, Laws, 1911, ch. 140.) 



9. NEW YOBK. 

A person who excludes from the equal enjoyment of any accommo- 
dation, facility, or privilege furnished by innkeepers or common car- 
riers, or by owners, managers, or lessees of theaters or other places 
of amusement or resort, any person lawfully wearing the uniform of 
the Army, Navy, Marine Corps, or Revenue-Cutter Service of the 
United States because of that uniform, is guilty of a misdemeanor. 
(Laws, 134th session, 1911, vol. 1, ch. 410.) 



686 DIGEST OF OPINIONS OF THE JUDGE ADVOCATE GENERAL. 
10. OKLAHOIfiA. 

Any person, persons, firm, or corporation ayIio shall refuse admit- 
tance to or eject from any place where the public is admitted, such 
as hotels, cafes, places of amusement, etc., any member of the United 
States Army, Navy, Marine Corps, Naval or Military Academy, or 
of the National Guards of any State, Territory, or the District of 
Columbia on account of his uniform, shall be guilty of a misde- 
meanor, and shall be punishable by a fine of not less than $50 nor 
more than $200, or imprisonment in the county jail for not to exceed 
thirty days, or by both such fine and imprisonment, at the discretion 
of the court. (Session Laws, 1910-11, ch. 153.) 



11. PEI^JNSYLVANIA. 

No proprietor, manager, or employee of a theater, or other place 
of entertainment or amusement, in the State of Pennsylvania, shall 
make or cause to be made any discrimination against any person 
wearing the uniform of the United States because of that uniform ; 
and any person making or causing to be made such discrimination 
shall be deemed guilty of a misdemeanor, punishable by a fine not 
exceeding five hundred dollars, or by imprisonment not exceeding 
one 3^ear, or by both. (Public Law 125, May 5, 1911; Purdon's 
Digest, vol. T, p. 7718.) 



12. KHODE ISLAISTD. 

It shall be unlawful for any common carrier, innkeeper, or pro- 
prietor or lessee of any place of public amusement or entertainment, 
or any agent, servant, or representative of any such common carrier, 
innkeeper, proprietor, or lessee as aforesaid, to debar from the full 
and equal enjoyment of the accommodations, advantages, facilities, 
or privileges of any public conveyance on land or water, of any inn, 
or of any place of public amusement or entertainment any person in 
the military or naval service of the LTnited States or of this State 
wearing the uniform prescribed for him at that time or place by law, 
regulation of the service, or custom, on account of his wearing such 
uniform or of his being in such service. (General Laws, 1909, ch. 
349, sec. 46.) 

13. VIRGINIA. 

Be it enacted hy the General Assembly of Virginia, That it shall 
be unlawful for any common carrier, innkeeper, or proprietor or 
lessee of any place of public amusement or entertainment, or any 
agent, servant, or representative of any such common carrier, inn- 
keeper, proprietor, or lessee as aforesaid, to debar from the full and 
equal enjoyment of the accommodations, advantages, facilities, or 
privileges of any pulilic conveyance on land or water, or any inn, or 
any place of public amusement or entertainment, any person in the 
Army, Navy, Marine Corps, or Revenue-Cutter Service of the United 
States, or of the National Guard or naval service of this State, or 
otherwise in tlie military or naval service of the United States, or 
of this State, wearing the uniform prescribed for him at that time or 
])hice by law, regulation of the service, or custom, on account of his 
wearine; such uniform or of his being in such service. 



DIGEST OF OPINIOlsrS OF THE JUDGE ADVOCATE GENEEAL. 687 

Any person who is debarred from such enjo.yment contrary to the 
provisions of section 1 of this act shall be entitled to recover in an 
action on the case from any corporation, association, or person guilty 
of such violation, his actual damages and one hundred dollars in ad- 
dition thereto; and evidence that such person debarred was at the 
time sober, orderly and willing to pay for such enjoyment in accord- 
ance with rates fixed therefor for civilians, shall be prima facie evi- 
dence that he was debarred on account of his wearing such uniform 
or of his being in such service. But nothing in this act shall be con- 
strued to conflict with existing laws representing the separation and 
segregation of the races in this Commonw-ealth. 

xVny person violating any provision of this act shall be guilty of 
a misdemeanor. (Acts of assembly, 1916, ch, 433.) 



Note. — Sec. 125 of the national defense act (39 Stat., 216) makes 
it unlawful for any person, not an officer or enlisted man of the 
United States Army, Navy, or Marine Corps, with certain enumer- 
ated exceptions, " to wear the duly prescribed uniform of the United 
States Army, Navy, or Marine Corps, or any distinctive part of such 
uniform, or a uniform any part of which is similar to a distinctive 
part of the duly prescribed uniform of the United States Army, 
Navy, or Marine Corps," making the offense punishable by a fine not 
exceeding $300 or by imprisonment not exceeding six months or by 
both such fine and imprisonment. This section Yvas made applicable 
to the Coast Guard by the act of August 29, 1916 (39 Stat., 619). 
Similar laws designed to prohibit the wearing of the uniform by 
anyone not in the mxilitary service have been enacted in the following 
States: Alabama, Arizona, Arkansas, California, Connecticut, Flor- 
ida, Georgia, Idaho, Illinois, Iowa, Kentucky, Maine, Maryland, 
Michigan, Mississippi, Missouri, Montana, New Hampshire, New 
Mexico, New York, North Dakota, Oklahoma, Oregon, Rhode Island, 
South Carolina, South Dakota, Tennessee, Texas, Utah, Washing- 
ton, West Virginia, and Wisconsin. 



INDEX. 



ABBREVIATIONS DENOTING ORIGIN OF OPINIONS OR DECISIONS DIGESTED. 

At. Gen Attorney General. 

Comp - Comptroller's decisions. 

Ct. Gls Court of Claims. 

D. C. App District of Columbia Appeals. 

Fed. Ct Federal courts. 

J. A. G Judge Advocate General. 

St. Ct State courts 

Sup. Ct., P. I - Supreme Court, Philippine Islands. 

Tr. Ct., P. I Trial Court, Philippine Islands. 



Bulletins. 



Able-Bodied Male Citizens — 

Eligibility for service in Organized Militia, pension for 

physical disability (J. A. G.) 

Absence — 

of Acting dental surgeons. See Dental surgeons. 

of Clerks. See Clerks and employees. 

of Employees of Military Academy. See Military 

Academy, 
of Enlisted men. See Enlisted men. 
of Enlisted men, National Guard. See Enlisted men. 

National Guard, 
of Officers. See Officers, Army. 

of Officers of National Guard. See Officers, National 
Guard. 

Stoppage of pay (J. A. G.) 

Accountability — 

for Supplies received (Fed. Ct.) 

Accounting OFPiCERSr- 

Jurisdiction, breach of contract, unliquidated damages 

(Comp.) 

Accounts — 

See also Disbursing officers . 

After settlement, may be reopened to correct mistakes 

(J. A. G.j 

Disposition of certified check received as guaranties 

(J.A.G.) 

Reopening of settled (Comp.) 

Shortage in, post exchanges, responsibility (J. A. G.). . 
Acting Dental Surgeons. See Dental surgeons. 
Active Duty — 

Assignment of retired paymasters' clerks to (J. A. G.). 
Act of God — 

Failure of subject matter of contract due to (J. A. G.) . . 
Impossibility of performance of contracts due to (J. A. G.) 
Transportation on Government bill of lading, loss by 

flood (Ct. Cls.) 

Adjutant op a Brigade — 

Detached service, duty as, by captain or field officer 
not detailed in Adjutant General's Department 
(J.A.G.) 

93668°— 17 44 



Year. 


No. 


1914 


50 


1917 


15 


1914 


5 


1914 


46 


1913 


8 


1915 
1915 
1915 


30 

30 

9 


1912 


20 


1915 
1913 


5 
29 


1912 


12 


1914 


33 



Page. 



443 



658 
342 

433 

162 

508 
511 
474 

47 

466 
271 

26 
394 



689 



690 



INDEX. 



Bulletins. 


Year. 


No. 


Page. 


Adjutant General — 








National Guard, State, Territory, or District, status of 








(J. A. G.) 


1916 


18 


577 


Admiralty — • 








Jurisdiction, cable damaged by vessel (Fed. Ct.) 


1917 


9 


657 


Advertising — 








Accepting next higher bid (J. A. G.) 


1912 


12 


6 


Alteration of bids (J. A. G.) _-•_-• 


1912 


12 


6 


Competition useless, supplemental contract with origi- 








na contractor (J. A. G.) -....---.. 


1912 


20 


33 


Contract with city of New York for certain work with- 








out (J. A. G.) 


1917 


15 


659 


Increase of quantities in contract under (J. A. G.) 


1912 


12 


6 


Lease of public property after (J. A. G.) 


1917 


15 


665 




1914 


33 


399 


Purchase of supplies in open market without (Comp.) . . 


1914 


43 


423 


Rates for newspapers (J. A.G.) 


1914 


20 


363 


Requirements as to, for purchase of supplies (Comp.). . . 


1915 


5 


469 


Requirements purchase of supplies (Comp.) 


1916 


8 


551 






Aeroplanes — ,^ 








Purchase of, without advertising, lack of competition 








(J. A. G.) 


1914 


33 


399 


Aids — 








Militia, to commander in chief and brigadier generals 








(J A G) 


1912 


20 


41 


\o . Jrs.. \j . / 

Alaska Railroads — 








Construction of, detail of Army officer (J. A. G.) 


1914 


25 


375 


Aliens — 








Employed on Government contracts (J. A. G.) 


1913 


18 


211 


Naturalization, enlisted men furloughed to Army Res- 








erve, sec. 2166, R. S. (Fed. Ct.) 


1916 


28 


605 


Allotment of Pay. See Pay of enlisted men. 
















For a particular allowance, such as heat and light, see 








the specific title. 








Viplrl plprlrci diitp of pnTnTPPTlCPTTlPnt, /'CoTm"> ^ 


1917 


15 


668 


Issue of shelter tents to ofiicers (J. A. G.) 


1917 


15 


658 


Officers retired with advanced grade (J. A. G.) 


1913 


27 


255 


Ambulance Companies — 








Disposition of proceeds of sales of manure from (J. A. G.) . 


1914 


50 


444 


Sergeants, limited warrant, appointment (J. A. G.) 


1917 


9 


651 


American Citizens — • 








Preference in employment of laborers on public works 








(J. A. G.) 


1914 


39 


409 


American Refugees— 








Use of Army transports in rescuing, in Mexico (J. A. G.) . 


1912 


20 


47 


Ammunition — 








Eight-hour law, application to contracts for furnishing 








(At Gen ) 


1912 


20 


52 


Purchases of, application of eight-hour law to (At. Gen.) . 


1912 


20 


51 


Ammunition Plants — 








Calling forth National Guard to protect (J. A.G.) 


1917 


18 


676 










Loss of property, responsibility of superintendent (J. 








A.G.) 


1913 
1913 


29 
17 


279 


Superintendent of, in classified service (J. A. G.) 


131 


Appointments — 








Armv nurses time when effective (Comp.) 


1914 


20 


369 










Army officer, commission issued in name of deceased 








"npT'^nTi (AtiTpii^ 


1912 


12 


23 


Recess, effect of Senate's failure to confirm (At. Gen.) . . 


1913 


1 


138 



INDEX. 



691 



Bulletins. 



Appropriations— 

Abstract of title, expenses for (Comp.) 

Adjustment for purchases by one bureau or department 
from another (Comp . ) 

Baggage of officers on Canal Zone (J. A. G.) 

Buitdings at military posts (Comp.) 

Burial expenses, accepted applicants for enlistment 
(J. A. G.) 

Burial expenses of cadets (Comp.) 

Charging to contractor for material furnished by Govern- 
ment (Comp . ) 

Construction of temporary hospitals (Comp . ) 

Contingencies, headquarters of military departments 
(J. A. G.) 

Contracts for Army supplies in absence of (Comp.) 

Cost of repairs to building leased by one department to 
another (J. A. G.) 

Depositions for courts-martial, how paid (J. A. G.) 

Diversion of, by detail of clerks and employees (J. A. G.) . 

Employment of land value expert (J. A. G.) 

Engineer equipment, cost of freight on material (Comp.) 

Expenses of marking Confederate graves (Comp.) 

Expenses of officer attending prison association (Comp . ) . 

Expenses of rifle competition (J. A. G.) 

Fees for membership in associations (Comp.) 

Freight cost on articles imported for particular use 
(J. A. G.) 

General and special, availability (J. A. G.) 

Heat and light for Navy and Marine Corps (Comp.) 

Heating apparatus in new buildings (Comp . ) 

Heating and plumbing fixtures, public buildings (Comp.) 

Improvement of boundary roads at national parks 
(J. A. G.) 

Insurance of parcel-post packages (J. A. G.) 

International Waterways Commission (J. A. G.) 

Limitation on cost of construction of barracks and quar- 
ters (Comp.) 

Lump sum. See Lump-sum appropriations. 

Medical attendance for seamen in Army transport serv- 
ice (J. A. G.) 

Mileage of officers on civil business (J. A. G.) 

Military prisoner held by civil authorities (J. A. G.) 

Money exchange, salaries, officers serving abroad (Comp . ) . 

Newspapers and periodicals for troops (J. A. G.) 

Payment of additional nurses (J. A. G.) 

Pay not to be increased from lump sum (J. A. G.) 

Proceeds from sale of quartermaster stores (Comp.) 

Public buildings, cost of plumbing chargeable to what 
(Comp.) 

Reimbursement for quartermaster stores supplied to 
Marines while serving with Army (J. A. G.) 

Repair of engineer buildings for troops (Comp.) 

Repaii' of militia property (J. A. G.) 

Special and general, limit on expenditures for hospitals 
(J.A.G.) 

Specific and General, Engineer School at Washington 
Barracks (J. A. G.) 

Specific Fund in General Appropriation, Surplus (J. A. 
G.) 

Transfer of public property (J. A. G.) 

Transportation charges, condemned Army horses issued 
to lyiilitia (Comp.) 



Year. 


No. 


191G 


57 


1914 


46 


1914 


25 


1913 


1 


1914 


25 


1916 


28 


1914 


33 


1914 


1 


1913 


13 


1917 


18 


1912 


20 


1913 


17 


1914 


43 


1913 


23 


1913 


31 


1913 


18 


1913 


17 


1913 


13 


1913 


17 


1914 


25 


1913 


27 


1913 


23 


1915 


14 


1913 


27 


1914 


25 


1913 


17 


1913 


1 


1914 


33 


1912 


12 


1913 


27 


1913 


31 


1915 


30 


1914 


14 


1914 


25 


1913 


17 


1917 


15 


1912 


12 


1914 


43 


1913 


38 


1914 


20 


1914 


50 


1914 


33 


1913 


23 


1915 


18 


1915 


36 



Page. 



638 

434 
376 
123 

376 
602 

401 
328 

173 
679 

28 
193 
417 
232 
297 
220 
198 
173 
199 

384 
246 
237 
482 
259 

380 
197 
133 

401 



11 
259 
295 
511 
359 
382 
190 
667 

17 

419 
323 
367 

439 

392 

226 
491 

522 



692 



INDEX. 



Bulletins. 




Page. 



Appropriations — Continued. 

Transportation of Mexican prisoners (J. A. G.) 

Traveling expenses of military attaches abroad (( 'omp. ) . 
Traveling expenses, officer on duty in connection with 

National Guard (.1. A. G.) 

Appurtenances— 

Construction of term as used in connection with navi- 
gable waters (J. A. G.) 

Architects — 

Contracts, employment under authority for public 

buildings (J. A. G.) 

Arms — 

Neutrality, importation of amiriunition and (At. Gen.). . 
Arms and Equipment — • 

Issue of, to high schools (J. A. G.) 

Army— 

Appointment of National Guard Reserve officers in 

Regular (J. A. G.) - 

Bands, use, diu'ing sessions of International Congress of 

Hygiene and Demography (J. A. G.) 

Details. See Details. 

Discharges. See Discharge. 

Enlisted men. See Enlisted men. 

Hospitals. See Hospitals. 

Increase in five increments, major fractions considered 

as units, sec. 24, national defense act (J. A. G.) 

Nurses. See Nurses, Army. 

Officers. See Officers, Army. 

Organization, brigade headquarters, enlisted men for, 

national defense act (J. A. G.) 

Recommissioning ex-ofhcers in (J. A. G.) 

Transportation. See Transportation. 
Transports. See Army transports. 
Army Field Clerks — ■ 
See also Field clerks. 

Employment of, as courts-martial reporter (J. A. G.). .. 
Army Nurse Corps. See Nurse Corps. 
Army Regulations— 

Light allowances to officers of Revenue-Cutter Service 

under (( 'omp. ) 

Li\ing expenses of civilian clerks on temporary duty 

(Ct. Cls.) 

Officer traveling with detachment as escort to Mexican 

officer (J. A. iG^.) 

Operative on promulgation, amendment as to rewards 

(J. A. G.) .' 

Power of Secretary of War to modify (Ct. Cls.) 

Army Reserve— 

Attached to Regular Army, not constituent parts of 

organizations (J. A. G.) 

Composition of, and obligations under (J. A. G.) 

Construction of law authorizing, full opinion (J. A. G.). 

Continuous-ser\dce pay (Comp. ) 

Effect of purchase of discharge (J. A. G.) 

Eligibility of enlisted men to be examined for commis- 
sions (J. A. G.) 

Employment of, in civil service (J. A. G.) 

Enlisted men, furlough to, making up time lost (J. A. G.) 
Enlistment of members of, Organized Militia, employ- 
ment as stablemen (J. A. G.) 

Furlough of alien enlisted men to, naturalization, sec. 
2166, R. S. (Fed. Ct.) 



1913 
1914 

1917 



1912 



1916 



1916 
1917 



1917 



1914 


50 


1914 


46 


1915 


1 


1915 
1914 


1 

8 


1916 
1913 
1912 
1916 
1913 


34 
1 
22 
28 
29 


1915 
1914 
1916 


1 
33 

1 


1916 


8 


1916 


28 



27 
46 



12 



1912 


20 


1912 


12 


1913 


31 


1917 


15 


1912 


20 



18 



34 
15 



INDEX. 



693 



Bulletins. 




Army Reserve — Continued. 

Furlough of enlisted men indebted to United States 
(J. A.G.) 

Gunner's pay on call to colors (J. A. G.) -^^ — 

Jury duty and taxation of soldiers assigned to (J. A. G.) . . 

Medical treatment of members (J. A. G.) 

Members amenable to courts-martial (J. A. G.) 

Members called to colors, physical disability, deduc- 
tion of pay for absence (J. A. G.) 

Members in active service, prom.otion of (J. A. G.) 

Organization of, national -defense act (J. A. G.) 

Pay and allowances, excused on responding to call 

(J. A. G.) : 

Reenlistment after four years' service (J. A. G.) 

Reenlistment after four years' service and passing to 

(J. A. G.) 

Relation of Organized Militia to (J. A. G.) 

Right of members to vote (J. A. G.) 

Transportation allowances of men furloughed to (Comp.) . 
Army Service Schools — 

Attendance at, for commission in Volunteer Army 

(J. A. G.) 

Army Supplies — 

Contracts for purchase of in absence of appropriations 

(Comp.) 

Army Transportation — 

Enlisted men, sleeping-car accommodations (J. A. G.). . 
Army Transports — 

Chartering to private parties (J. A. G.) 

Crews, seaman laws applicable to (J. A. G.) 

Families of officers and others carried on (J. A. G.) 

Officers performing temporary duty on, quarters or 

commutation (Comp . ) 

Use of , in rescuing A mer ican refugees inMexico(J.A.G.) 
Use of, in transporting Chinese exhibits to Panama- 
Pacific International Exposition (J. A. G.) 

Army Transport Service — 

Medical attendance for seamen, appropriation (J. A. G.). 
Articles op War — 

Discharges by department commander under fourth 

(J. A. G.) 

Disposition of personal property of retired soldiers who 

die in Army hospitals (J. A. G.) 

Enlisted men, discipline, failure to produce clothing at 

inspection (J. A. G.) 

Surrendering soldiers to civil authorities under the fifty- 
ninth (J. A. G.) 

Artillery Practice — 

Loss of private property due to. articles necessary for use 

in quarters (.T. A. G.) ^ 

Assignee — 

Payment to, on assignment of contract (Comp.) 

Payment to, where surety as well as (J. A. G.) 

Assignment — 

of Clainis. See Claims, 
of Contracts. See Contracts. 
Assistant Veterinarian. See Veterinary Corps. 
Associations — 

Expenses of officers detailed to attend (J. A. G.) 

Fees for memberslup (Comp.) 

]\Iembership fees or dues in International Association of 
Chiefs of Police (J. A. G.) 



191G 
1916 
1914 
1915 
1916 
1913 

1916 
1916 
1916 

1916 
1916 

1914 
1913 
1913 
1915 



1913 



1917 


18 


1912 


20 


1912 
1916 
1913 


20 
57 
13 


1912 
1912 


20 
20 


1914 


30 


1912 


12 


1912 


12 


1914 


46 


1912 


20 


1912 


12 



1914 



1914 
1914 



1912 
1913 

1912 



No. Page. 



18 

47 
25 
18 



34 
39 
34 

47 



43 
8 
1 

36 



43 

43 

43 



20 
17 

20 



694 



INDEX. 



Bulletins. 




Attorneys — 

Emi^loyment of (J. A. G.) 

Automobiles — 

Hire from oflScer, unauthorized (J. A. G.) 

Hire of, for officers traveling on mileage status (Comp.), 

Licenses or fees by States for operation of Government 
(J. A. G.) - 

Military reservations, taxation of Government agencies 
(J. A.G.) 

Officer's used in Government service, furnishing oil and 
gas, unauthorized (J. A. G.) 

Procurement of local licenses for operation of (J. A. G.) 

Tires, failure to make guaranteed mileage (J. A. G.) ... 
Aviation Pay — • 

Officers of Officers' Reserve Corps (J. A. G.) 

Aviation Service — 

Act establishing aviation section, repeal of prior statute 
(J. A.G.) 

Additional pay for mounts, gratuity (Comp.) 

Assigning militia officers to (J. A. G.) 

Assignment to, of fliers from militia or civil life, reserve 
officers (J. A. G.) 

Assignment to, of reserve officers (J. A. G.) 

Aviators commissioned in Officers' Reserve Corps 
(J. A.G.) 

Flight on Labor Day without orders, line of duty(J. A. G.) 

Increased pay for, depends on duty, not detail (Comp.) 

Increased pay for, National Guard (J. A. G.) 

Increase in.personnel (J. A. G.) 

Increase of pay and allowances (Comp.) 

Officers detailed in, when additional pay begins (J. A. G.) 

Pay and allowances of mechanician on furlough (J. A. G.) 

Pay of officer while on leave of absence (Comp.) 

Awaiting Orders — 

Status of Army officer while on leave or detached serv- 
ice (J. A. G.) 

Awards and Proposals — 

Delay in making award after opening bids (Comp.) .. . . . 

Liability of contractors for failure to deliver supplies 

under agreement represented by (Comp.) 

Baggage — 

See also Change of station. 

Change of station of Army officers, horses not regarded 
as (Comp.) 

Civilian employees, change of station (J. A. G.) 

Enlisted men on discharge (J. A. G.) 

Excess, land-grant deductions (Comp.) 

Excess on change of station (Comp.) 

Excess, transportation, apportionment of charges (Conap. 
Excess, transportation of, change of station (Comp.) . . . 
Officers' allowance on change of station, promotion 

(J. A.G.). 

Officers detailed to Panama Canal (J. A. G.) 

Officers on detail with higher rank (J. A. G.) 

Officers on mileage status (Comp.) * 

Officers, shipment as excess passenger, cost of (J. A. G.) . 

Officers traveling on mileage status (Comp.) 

Personal, loss or damage, officers or enlisted men (Comp. 

Remission of cost of excess (J. A. G.) 

Transportation, officers' change of station allowance 

(J. A.G.) 



1915 

1915 
1914 
1914 

1914 

1912 

1915 
1917 
1914 

1917 



1914 
1916 
1916 

1916 
1916 

1916 
1912 
1915 
1916 
1916 
1913 
1913 
1916 
1915 



1914 
1915 
1914 



1912 
1913 
1913 
1914 
1913 
1915 
1916 
1916 

1915 
1914 
1913 
1913 
1916 
1913 
1916 
1914 

1916 



36 

36 
25 
50 

52 

20 

36 
18 

52 

18 



43 
1 

28 

28 
28 

28 
20 
36 
34 
28 
17 
18 
18 
36 



46 
30 

52 



12 
35 
35 
8 
35 
36 
18 
13 

36 

25 
29 
31 
47 
29 
47 



57 



INDEX. 



695 



Bulletins. 



Bailment for Hire — 

Responsibility for loss of horse used contrary to con- 
tract (Comp.) 

Bailments — 

JMaterial furnished contractor destroyed bv fire, lia- 
bility for loss (J. A. G. ) ' 

Bands for Coast Artillery — 

Pay of members of (J. A. G.) 

Bankruptcy Law — 

Army officers taking advantage of, to escape payment of 

debts (J. A. G.) 

Barber Shops — 

Company, whether constitute Government agency 

(J. A.G.) 

Barracks and Quarters — 
See also Quarters, Army. 

Limitation on cost of construction of (Comp.) 

Belligerents — 

Admission of sick and wounded to Army hospitals 

(J. A. G.) ■ 

Beneficiary — 

See also Gratuity. 

Death of, before receiving the six months' gratuity 

(Comp.) 

Designation as, gratuity pay, effect of will (Comp.). . . 

Designation of, for gratuity (Comji.) 

Bidders — 

See also Bids; Contracts. 

Failure of successful, to enter into contract, liability 

of guarantors (J. A. G.) 

Bids — 

See also Contracts. 

Accepting next higher (J. A. G.) 

Advertising, alteration of (J. A. G.) 

Alteration of proposal after opening of (J. A. G.) 

Contracts, acceptance of alternative (Fed. Ct.) 

Contract with city of New York for certain work with- 
out inviting (J. A. G.) 

Delays of contractor in completing contract, exclusion 

of future (J. A. G.) 

Failure to accept award within time limit, liability of 

guarantors (J. A. G.) 

Lease of public property in response to (J. A. G.) 

Billiard Tables — 

Company, whether constitute Government agency 

(J. A.G.) 

Board on Medals of Honor — 

Findings of under national defense act (J. A. G.) 

Boards of Survey — 

Finality of findings (J. A. G.) 

Bonds — 

Cancellation of on acceptance of new (J. A. G.) 

Certificates to contractor's guaranty ( J. A. G.) 

Contractors annual or blanket (J. A. G.) 

Contractors, collateral to secure performance of contract 

(J. A. G.) 

Effect of printed word "seal " (J. A. G.) 

Labor and material men, suit on (Fed. Ct.) 

Material alteration of contracts ( J . A . G . ) 

Modification of contract releases sureties (J. A. G.) 

Protection of laborers and material men (J. A. G.) 

Protection of workmen and material men, waiver 
(J. A. G.) 



Year. 


No. 


1914 


43 


1917 


9 


1916 


39 


1914 


52 


1912 


20 


1914 


33 


1014 


43 


1912 
1915 
1916 


12 
26 
39 


1915 


5 


1912 
1912 
1914 
1912 


12 
12 
50 
12 


1917 


15 


1912 


12 


1915 
1917 


5 
15 


1912 


20 


1917 


15 


1913 


18 


1917 
1913 
1913 


15 
23 
31 


1917 
1913 
1913 
1913 
1913 
1913 


9 

13 

23 

31 

4 

1 


1913 


1 



696 



INDEX. 



Bulletins. 




Bonds- — Continued. 

Surety may be party to contract (J. A. G.) 

Where contract is assigned (J. A. G.) 

Books — 

Library, mailing under penalty envelopes (J. A. G.) 

Brigade Headquarters — 

Organization, enlisted men for (J. A. G.) 

Brigadier Generals — 

Militia, aids, unassigned list (J. A. G.) 

Buildings — 

Erected on military reservations under licenses, title to 
(J. A. G.) 

Leased, repairs of fire damage (J. A. G.) 

Public. See Public buildings. 
Bureau op Insular Affairs. See Insular Affairs, Bureau 

of. 
Burial Expenses — 

Accepted applicants for enlistment (J. A. G.) 

Cadet, appropriation (Comp.) 

Clerk, Quartermaster Corps (Comp.) 

Deceased general prisoners (J. A. G.) 

Deserter, killed while attempting to escape (J. A. G.) 

Indigent ex-Union soldiers dying in District of Colum- 
bia (J. A. G.) 

Officers, soldiers, and civilian employees (Comp.) 

Business, Commercial — 

Enlisted men engaging in, hiring out automobiles 
(J. A. G.) 

Furloughed for retirement (J. A. G.) 

Cable — ■ 

Damage to, liability of owner of vessel (Fed . Ct. ) 

Cadets — 

See also Military Academy. 

Appointment of enlisted men as, eligibility (J. A. G.) 

Burial expenses, appropriation (Comp.) , 

Reappointment to Military Academy under sec. 1325, 

R. S. (J. A. G.) 

Canal Zone — 

See also Panama Canal. 

Penitentiary, confinement of military prisoners in 

(J. A. G.y 

Captains, Army — 

Duty as adjutant of brigade when not detailed in Adju- 
tant General's Department, detached service (J. A. G.) 
Cargador — 

Mountain artillery, rate of pay (J. A. G.) 

Cavalry — 

Troops of, participati-on in horse shows (J. A. G.) 

Cemeteries — 

Dedication of roads through (J. A. G.) 

Defacement of monuments, rewards ( J. A. G.) 

Expenses of marking Confederate graves (Comp.) 

Improvement of boundary roads (J. A. G.) 

National, who are eligible for superintendents (J. A. G.) . 
Certificate of Merit — 

Enlisted men, pay under subsequent enlistment (J.A.G.) 

Enlisted men, time of making recommendation for (J. 

A.G.) 

Change of Station — 

See also Baggage. 

Baggage allowance, Army officer, horses not regarded 
as (Com]).) 

Baggage allowance and crating (J. A . G . ) 



1913 
1913 


8 

8 


1914 


1 


1916 


34 


1912 


20 


1915 
1914 


9 
20 



1914 


25 


1916 


28 


1916 


13 


1913 


18 


1913 


27 


1915 


18 


1915 


1 


1913 


8 


1912 


12 


1917 


3 


1917 


9 


1917 


9 


1916 


28 



1912 



1911 



12 



20 



1914 


33 


1916 


28 


1915 


1 


1913 
1913 
1913 
1914 
1913 


27 
13 
18 
25 
4 


1912 


20 


1912 


20 


1912 
1913 


12 

27 



INDEX. 



Bulletins. 


Year. 


No. 


Page. 


Change of Station — Continued. 








Baggage allowance, effect of promotion (J. A. G.) 


1915 


36 


521 


Baggage allowance to officers with detail rank (J. A. G.) . 


1913 


29 


268 


Baggage, transportation of excess (Comp.) 


1916 


13 


559 


Civilian employees, baggage allowance (J. A. G.) 


1913 


35 


309 


Excess baggage, officer's, transportation (Comp.) 


1910 


36 


525 


Excess ship'ment of officer's goods on (J. A. G.) 


1915 


9 


475 


Horses of officer, transportation of (Comp.) 


1915 


21 


503 


Officer on special mission abroad (Comp.) 


1913 


31 


299 


Temporary service, heat and light allowance to family 








(J. A. G.) 


191G 


1 


540 


Transportation of household goods (J. A. G.) 


1913 


8 


163 


Chapels — ■ 








Donation of, to United States (J. A. G.) 


1913 


31 


296 


Erection of sectarian on military reservations (J. A. G.) . . 


1912 


20 


111 


Chaplains— 








Computation of service, promotions (J. A. G.) 


1913 


35 


304 


Grade and pay, National Guard (J. A. G.) 


1916 


57 


635 


Promotion of, service on retired list (J. A. G.) 


1914 


8 


345 


Charges — 








Certainty in allegations (J. A. G.) 


1915 


36 


526 


Removal after discharge of soldier (J. A. G.) 


1915 


14 


479 


Chauffeurs — 








Eight-horn- law not applicable to (J. A. G.) 


1916 


8 


545 


Procurement of local licenses for Government motor 








vehicles (J. A. G.) 


1917 


18 


671 


Checks — 








Certified, received as guaranty, disposition of (J. A. G.). 


1915 


30 


508 


Loss of original, issuance of second original (Comp.) 


1915 


36 


523 


Chief Clerks — 








Executive department, designate clerks to administer 








oaths (J. A. G.) 


1912 


20 


42 


Chief Musician — 








Reduction to ranks, by regimental commander (J. A. G.) . 


1916 


18 


569 


Chief of Artillery. See Chief of Coast Artillery Corps. 








(Jhief of Coast Artillery Corps — 








Additional member of General Staff Corps, full opinion 








(J. A. G.) 


1912 


22 


96 


Chief of Division of Militia Affairs — 








Additional meml>er of General Staff Corps, full opinion 








(J. A. G.) 


1912 


22 


96 


Chief op Quartermaster Corps — 








Construction of law as to duties in connection with con- 








solidated departments, full opinion (J. A. G.) 


1912 


22 


88 


Chief of Staff — • 








Office of, part of Army and not of War Department 








(Comp.) 


1913 


27 


262 


Chinese Exhibit — 








Use of Army transport for transporting to Panama-Pacific 








International Exhibition (J. A. G.) 


1914 


39 


414 


Church Buildings — 








Erection of sectarian chapels on military reservations 








(J. A. G.) 


1912 


20 


41 


Civil Authorities — 








Enlisted men arrested and confined by, pay on condona- 
tion of offense and discharge (J. A. G.) 








1912 


20 


28 


Enlisted men detained by, absent without leave (J.A.G.) 


1912 


20 


37 


Expenses for detention of soldier (J. A. G.) 


1917 


15 


659 


Extradition of enlisted men to another State for prose- 








cution by (J. A. G.) 


1915 


5 


466 


Surrendering soldiers to, under fifty-ninth article of war 








(J. A G ) 


1912 


12 


4 


Civil Courts— 








Review of courts-martial proceedings (Fed. Ct.) 


1914 


25 


389 



698 



INDEX. 



Bulletins. 




Civil Employment — 

See also Clerks and Employees. 

Enlisted men accepting, while on furlough (J. A. G.). . 

Civilian Eaiployees — 

Computation of holiday pay for piecework (Comp.). . . 

Holiday pay for temporary (Comp.) 

Pay while receiving training in Enlisted Reserve Corps 
(J. A.G.) 

Stoppages to reimburse United States ( J. A. G . ) 

Civilians — 

Expenses for treatment in Government hospital(J. A. G.) 

Medical supplies for camp of instruction (J. A. G.) 

Rale of Government property (fuel) to (J. A. G.) 

Civilian Witnesses — 

See also Witnesses. 

Compelling officer to proceed to point to be identified 

by, evidence against himself (J. A. G.) 

Civil Service — _ 

See also Classified service; Clerks and employees. 

Commission, appointment of retired naval officer to 
position under (At. Gen.) 

Efficiency ratings, discharges or promotions (J. A. G.). . 

Enlisted men of Army Reserve, employment in (J. A. G). 
Civil War — 

Charge of desertion, when may be removed (J. A. G.)... 

Deserters, President's pardon proclamation of 1865 
(J. A.G.) 

Determining date of enrollment (J. A. G.) 

Medals of honor, how obtained (J. A. G.) 

Promotion of retired officers for service in (J. A. G.) 

Resignation of officers during, desertion (J. A. G.) 

Civil Works — 

Army officers engaged on (At. Gen.) 

Claims — 

Additional payment after final settlement, jurisdiction 
(Comp.) 

Assignment of, sec. 3744, Revised Statutes (J. A. G.). . . 

Caring for and returning lost public property (J. A. G.). 

Cattle killed where troops had removed fence on land 
leased for maneuvers (J. A. G.) 

Clothing lost at post laundry (J. A. G.) 

Compromise of Government claims (J. A. G.) , . 

Contractor, extra work due to faulty design (J. A. G.). . 

Contractor's, extras not agreed upon in writing (J. A. G) . 

Copies of official records to support (J. A. G.) 

Damage caused by torts of soldiers (J. A. G.) 

Damage to barge hired for public use (Comp.) 

Electric current not registered by meter (J. A. G.) 

Horses lost in military service (Ct. Cls.) 

Injury to general prisoner (J. A. G.) 

Loss of horse by officer (Comp.) 

Loss of horses, in military service (Ct. Cls.) 

Loss of private property, delay (Comp.) 

Loss of private property due to Artillery practice 
(J. A.G.) 

Loss of priA-ato property in military service ^Comp.) 

Loss of private property in military service (Ct. Cls.). . . 

Loss of pro])erty in fighting fire on Government vessel 
(J. A.G.) 

Loss of vehicle, hired by Government employee travel- 
ing on public business (Comp.) 



1914 
1917 

1917 
1917 

1917 
1917 

1915 
]016 
1914 



1914 



1913 



33 
3 

15 

18 

18 
18 

5 
18 
33 



50 



1912 


20 


1913 


27 


1914 


33 


1913 


4 


1913 


8 


1913 


1 


1913 


1 


1914 


1 


1915 


9 



29 



1917 


9 


1912 


12 


1914 


43 


1912 


12 


1914 


20 


1916 


8 


1917 


18 


1915 


1 


1917 


9 


1914 


20 


1914 


1 


1914 


5 


1913 


29 


1917 


15 


1914 


5 


1913 


8 


1916 


8 


1913 


18 


1914 


43 


1913 


35 


1917 


18 


1914 


1 


1915 


21 



INDEX. 



699 



Bulletins. 



Claims — Continued . 

Overtime work under eight-hour law (J. A. G.) 

Pay for accumulated leave (J. A. G.) 

Personal baggage, loss or damage, officers or enlisted 
men (Comp.) 

Personal property, loss or damage, evidence required 
(Comp.) 

Post charges, vessels liable to (U. S. Sup. Ct.) 

Private property damaged by soldiers (J. A. G.) 

Private property of officer destroyed (Comp.) 

Reimbursement for expenses, hauling baggage (Comp.), 

Rental of land purchased (Comp.) 

Responsibility for loss of horse used contrary to contract 
of hiring (Comp.) 

Pi,etired Army officers acting as agents in prosecution of 
(At. Gen.) 

Torts of Government employees (Comp.) 

Under workmen's compensation act (At. Gen.) 

Use of private property in public service (J. A. G.) 

Classified Service — 

See also Civil service; Clerks and employees. 

Removals, how made (J. A. G.) 

V/ar Department, filling vacancies in, under act of Aug. 

23, 1912 (Comp.) 

Clemency — ■ 

Recommendations (J. A. G.) 

Remission of sentence of Marines, termination of de- 
tachment with Army prior to execution of sentence 

(J. A.G.) 

Clerical Positions — 

War Department, filling, under act of Aug. 23, 1912 

(Comp.) 

Clerks and Employees — 

See also Civil service; Classified service; Government 
employees. 

Absence, leave of, lump-sum appropriation (Comp.) 

Absence on account of sickness in family (Comp.). . . . . 

Absence on account of vaccination (J. A. G.) 

Admission to Government Hospital for Insane after dis- 
charge (J. A. G.) 

Appointment of retired naval officer as clerk of class 3 
(At. Gen.) 

Battlefield superintendent, how removed (J. A. G.) . . . . 

Civilian, of Quartermaster and Medical Corps, issue of 
fuel in kind to (J. A. G.) 

Compensation for injuries to Federal (J. A. G.) 

CopjTight of photographs made by (J. A. G.) 

Debts, disobedience of orders requii'ing specific pay- 
ments on (J. A. G.) 

Debts, failure to pay (J. A. G.) 

Diversion of appropriations by detail of (J. A. G.) 

Domestic servants not subject to eight-hour law (J.A.G.) . 

Efficiency ratings, discharges, and promotions (J. A. G.) . 

Employment of Army field clerks as reporters (J. A. G.) . 

[(J. A.G.) 

(Comp.) 

Expenses while on temporaxy dutyj (Comp.) 

|(J. A.G.) 

i(Ct. Cls.) 

Expert on land values (J. A. G.) 

Field clerks. See Field clerks. 

Fort Bayard, N. Mex., military jurisdiction over 
(J.A.G.) 



Year. 


No. 


1917 


18 


1914 


20 


1916 


47 


1916 


18 


1917 


9 


1916 


47 


1917 


15 


1916 


8 


1917 


18 


1914 


43 


1912 


20 


1916 


28 


1913 


23 


1917 


18 


1913 


13 


1912 


20 


1916 


1 


1914 


52 


1912 


20 


1913 


23 


1914 


1 


1913 


17 


1912 


20 


1912 


20 


1913 


17 


1914 


43 


1912 


20 


1913 


31 


1914 


46 


1914 


46 


1914 


43 


1913 


17 


1913 


27 


1917 


9 


1913 


1 


1913 


18 


1914 


14 


1914 


25 


1914 


46 


1913 


23 


1912 


20 



Page. 



700 



INDEX. 



Bulletins. 



Clerks and Employees — ^'ontinued. 

Government's right to use inventions of (J. A. G.). . . . 

on Government vessels, medical treatment (J. A. G.). 

Holiday pay for temporary (Comp.) 

Horn's of work on Saturdays, overtime (J. A. G. ) 

Leaves of absence to attend military camps of instruc- 
tion (J. A. G.)- - 

Leaves of absence, National Guard, called into United 
States service (Comp.) 

Lump-sum appropriations, payment fi'om. See Lump- 
sum appropriations. 

Medical treatment in hospitals (J. A. G.) 

Medical treatment of (Comp.) 

Member of District of Columbia Militia, leave of ab- 
sence (J. A. G.) 

Members of National Guard, leaves of absence, to en- 
gage in field or coast-defense training (J. A. G.) 

Members National Guard, salaries of two positions 
(Comp.) _ 

Pay during absence without authority (Comp.) 

Pay during suspension for insubordination (J. A. G.). . 

Pay during suspension under charges (Comp.) 

Pay for accumulated leave (J. A. G.) 

Pay for extra duty (Comp.) 

Pay for holidays (J. A. G.) 

Pay for overtime (J. A. G.) 

Pay from lump-sum appropriations. See Lump-sum 
appropriations. 

Pay while receiving ti'aining in Enlisted Reserve Corps 
(J. A.G.) 

Performing seri^ce for foreign Government, pav for 

(LA. GO ...:..... 

Preference to American citizens on public works 

(T.A.G.) 

Presents for ofiicial superiors (J. A. G.) 

Promotions and dismissals under ci\il-service rules 

(J. A.G.) 

Purchase of Government supplies from (J. A. G.) 

Quartermaster Corps, burial expenses of (Comp.) 

Quartermaster Corps, enlisted men substituted for, full 

opinion (J. A. G .) 

Quartermaster Corp-s, enlisted men to take place 

(J. A.G.) 

Kation allowances while under treatment in hospitals 

(.T.A.G.) 

Peimbursement for meals at home station (Comp.) 



Removals of, how made (J. A. G.) 

Signal Corps, land-grant deductions for transportation 

(Comp.) 

Stoker on Government dredge, right to be returned to 

place of hire (Comp.) 

Teamsters for Quartermaster's Department (J. A. G.) . . . 

on Temporary duty expenses. See this title, Expenses 

while on temporary duty. 
Temporary, four-hour days on Saturdaysfor (J. A. G.).. . 
Temporary promotions, when prohibited (Comp.) 

Traveling expenses, computation of (Com]).) 

Traveling expenses, temporary duty (Comp.) 




1913 
1913 
1917 
1913 

1915 

1916 



1914 


14 


1914 


14 


1912 


20 


1916 


28 


1917 


9 


1914 


46 


1912 


20 


1914 


20 


1914 


20 


1913 


18 


1913 


1 


19 L4 


25 



1917 

1913 

1914 
1912 

1913 
1915 
1916 

1912 

1912 



39 



18 



18 



39 
12 

18 
21 
13 

22 

20 



1916 


8 


1916 


47 


1912 


12 


1913 


1 


1913 


4 


1913 


13 


19L3 


17 


1915 


26 


1917 


3 


1913 


35 


1914 


39 


1915 


32 


1913 


8 


1914 


5 


1914 


14 



INDEX. 



701 



P/Ulletins. 



Clothing — 

Allowance, change of initial, during enlistment (J. A. G.) 
Allowance of, Militia mustered into Federal service 

(J.A.G.) 

Allowance of, National Guard mustered into Federal 

service (J. A.G.) 

Allowance to enlisted men. Sec Enlisted men. 
Allowance to national guardsmen. See Enlisted men. 

National Guard. 
Enlisted men, failure to produce, at inspection, Article 

of War (J.A.G.) 

Theft of blanket by one soldier from another. Article 

of War (J. A.G.) 

Title to, issued (J.A.G.) 

Title to, issued to national guardsmen (J. A. G.) 

Unifcrm, National Guard, title to (J. A. G.) 

Collateral — 

to Secure performance of contract (J. A. G.) 

Colleges. See Educational institutions. 
Command — 

Authority of retired officer, assigned to active duty, to 

exercise, over enlisted men (J. A. G.) 

Detached service, exercising, when not present with 

company, two-company commands (J. A. G.) 

Officer of Quartermaster's Department in charge of post 

(J.A.G.) 

Commanders in Chief — 

Militia, aids, unassigned list (J. A. G.) 

Commanding Officers — 

Functions of (J. A . G.) 

Commerce, Department of — 

Repairs to lighthouse tender damaged by steamer of 

Quartermaster Corps (Comp.) 

Commercial BasiNES.s — 

Enlisted men engaging in, hiring out automobiles 

(J.A.G.) ■: 

Enlisted men furloughed for retirement (J. A. G.) 

Commissioned Officers. See Officers, Army. 

('OMMISSIONS — 

See also Officers, Army. 

Army officer, issued in name of deceased person (At. 

Gen.) 

New, for officers of constituent departments of Quarter- 
master Corps (J. A. G.) 

Common Carriers — 

Deductions for loss occurring in prior shipment (Comp.) . . 
Disposition of Government horse injured while in ship- 
ment (J. A. G.) 

Fire loss of pubhc propertj^ (J. A. G.) 

Reimbursement of cost of inspection of horses at State 

lines (Comp.) 

('ommutation of Quarters. See Quarters, Army. 
Company Exchange — 

Purchase of supplies from (J. A. G.) 

Company Funds — 

Disposition of proceeds of sales of manure from ambu- 
lance companies (J. A. G.) 

Expenditure of, intoxicating liquors (J. _A. G.) 

Not available for increasing compensation in enlisted 

grade (J. A.' G.) 

Compensation. See Pay. 



Year. 




Page. 



1913 
1917 
1917 

1912 

1912 
1913 
1917 
1917 

1917 



1914 


52 


1914 


33 


1914 


25 


1912 


20 


1914 


25 



1914 



1912 
1917 



1912 


12 


1914 


33 


1914 


50 


1914 


39 


1913 


31 



1915 



1913 



1914 
1916 

1916 



1 
15 
15 

20 

20 
1 
3 
9 



46 



12 
3 



23 

50 

8 

47 



702 



INDEX. 



Bulletins. 



Comptroller of the Treasury — 

Decision of, overruled, effect on unsettled accounts 
(Comp.) 

Finality of decisions (J. A. G.) 

Jurisdiction over disbursing officers' accounts (('omp.). . 

Right of disbursing officers to advance decisions (J. A. G.) 
Confession — 

Corroborative evidence in case of (Fed. Ct.) 

Confidential Plans — 

Contracts, Returns Office, disclosure of, in retiirns to 

(At. Gen.) 

Confinement — ■ 

Absence from active duty on account of, forfeiture of pay 
(Comp.) 

Awaiting trial and result, for desertion, not counted 
toward completion of enlistment on restoration 

(J. A. G.) 

Connecticut — 

Discrimination against Army uniform, etc. , prohibited . . . 
Contingencies of Army — • 

Burial expenses of general prisoner (J. A. _G.) .--.--- 

Cost of holding military prisoners by civil authorities 
(J. A.G.) 

Reward for recovering public property (J. A. G.) 

Contingent Expenses — 

Burial expenses of general prisoner (J. A. G.) 

Continuous-Service Pay — 

Ser\dce in Army Reserve (Comp.) 

Contractors — 

8ee also Contracts. 

Adjustment of mistakes made in final payment to 
(Comp.) 

Charging cost of material furnished by United States to 
(Comp.) _ 

Charging with cost of work voluntarily furnished by 
United States (Comp.) 

Claims for extras not agreed upon in writing (J. A.G.).. 

Compromise of Government claims with (J. A. G.) 

Continuing labor on other contracts after eight-hour 
limit (J. A. G.) 

Control over employees and conditions of manufacture 
(J. A.G.) .•--.-■■- 

Default in furnishing supplies, surety, appropriations 
(J. A. G.) 

Defaulting, withholding payments for benefit of labor 
and material men (J. A. G.) 

Default of, liability of surety, procedure {J. A. G.) 

Delays in completion of contract, exclusion of future 
bids (J. A. G.) 

Delivery of supplies after expiration of contract (Comp. ) . 

Liability for damage to property before acceptance by 
United States (J. A. G.) 

Liability for failure to deliver supplies under agree- 
ment represented by proposal and award (Oomp.) 

Liability, material destroyed by fire (J. A. G.) 

May furnish annual bond (J. A. G.) 

Measure of damages against, upon annulment of con- 
tract on default ( Fed. Ct.) 

Notice to make delivery of articles purchased, suffi- 
ciency of (J. A. G.) 

Relief from furnishing supplies because of increased 
cost due to European war (At. Gen.) 



Year. 


No. 


1913 
1913 
1917 
1914 


38 
29 
15 

8 


1917 


18 


1912 


12 


1914 


50 


1917 


3 


1917 


18 


1913 


27 


1913 
1915 


31 

14 


1913 


27 


1916 


28 


1915 


9 


1914 


33 


1914 
1915 
1916 


33 
1 

8 


1913 


8 


1913 


38 


1916 


34 


1914 
1915 


50 
21 


1912 
1915 


12 
9 


1913 


8 


1914 
1917 
1913 


52 

9 

31 


1914 


39 


1912 


12 


1915 


5 



INDEX. 



703 



Bulletins. 




Contractors — Continued. 

Relief from obligation in excess of estimated require- 
ments (J. A. G) 

Relief of, advance of material and demand for skilled 
labor (J. A. G) 

Supplies, relief on account of increased price due to 
European war (J. A. G.) 

Use of penalty envelope (J. A. G.) 

Contracts-- 

See also Bidders; Bids; Contractors. 

Acceptance of supplies on conditions (J. A. G.) 

Acceptance of work before completion (J. A. G.) 

Adjustment of mistakes made in final payment (Comp.). 

Advertising, accepting next higher bid (J. A. G.) 

Advertising, alteration of bids (J. A. G.) 

Advertising for bids (J. A. G.) 

Advertising, increasing quantities under (J. A. G.) 

Alterations affecting sureties (J. A. G.) 

Annual supplies, quantity contemplated (J. A. G.) 

Annulling^f or default and reletting, measure of damages 
(Fed. Ct.) 

Application of eight-hour law to, act of June 19, 1912 
(At. Gen.) .^ 

Application of eight-hour law to informal (J. A. G.) 

Ascertainment of damages for delays (Comp.) 

Assignment of (J. A. G.) 

Assignment of, payment to assignee (Comp.) 

Assignment of, payments to original contractor (Comp.) . 

Assignment of, to surety, jDayment to assignee (J. A. G.) . 

Authority of postmasters to administer oaths to officer's 
returns of (J. A. G.) • 

Bailments, liability of bailee (J. A. G.) 

Bid and acceptance not a contract (J. A. G.) 

Bids, acceptance of, alternative bids (Fed. Ct.)...; 

Bids received after hour for opening (J. A. G.) 

Binding Government for indefinite amoimt (J. A. G.)... 

Bonds for protection of workmen (J. A. G.) 

Breach as to deliveries, measure of damages (Comp.). . . 

Breach of, deductions (Ct. Cls. ) 

Breach, settlement of damage by auditor (Comp.) 

Certificate on bonds as to sufficiency (J. A. G.) 

Change in statutory requirements as to formal (J. A. G.) . 

Charging cost of work voluntarily furnished by Govern- 
ment (Comp. ) 

Charging to contractor cost of material furnished by the 
United States (Comp.) 

Claim for electric current not registered by meter 
(J. A. G.) 

Claim of contractor for extras not agreed upon in writing 
(J. A. G.) 

Claim for extra work due to faulty design (J. A. G.) 

Collateral to secure performance ( J. A. G . ) 

Competition useless, supplemental contract with original 
contractor (J.. A. G.) 

Construction of (J. A. G.) 

Construction of, claim for extra compensation (J. A. G.).. 

Correction of mistake (U. S. Sup. Ct.) 

Cost of work, extra work (Ct. Cls. ) 

Damage for breach of parole contract (Fed. Ct.) 



1917 


15 


1917 


18 


1914 


46 


1915 


18 


1913 


17 


1913 


27 


1915 


9 


1912 


12 


1912 


12 


1917 


15 


1912 


12 


1913 


31 


1916 


13 


1914 


39 


1912 


20 


1913 


8 


1913 


29 


1913 


8 


1914 


43 


1913 


17 


1914 


43 


1914 


52 


1917 


9 


1913 


18 


1912 


12 


1913 


18 


1913 


23 


1914 


14 


1913 


1 


1913 


1 


1913 


8 


1915 


14 


1916 


13 


1913 


23 


1915 


9 



1914 



1914 



1913 



1915 


1 


1917 


18 


1917 


9 


1912 


20 


1917 


9 


1917 


15 


1912 


12 


1917 


9 


1912 


12 


1913 


38 



33 
33 
29 



704 



INDEX. 



Bulletins. 



Contracts — Cou tinned . 

Damat^e for delay, re.sponsibility of United States 
(J-A.G.) , 

Damage to barge hired for public use (Comp.) 

Damage to contract property before acceptance (J. A. G.). 

Default of contractor, liability of surety, new contract 
(Fed. Ct.) 

Delay in approval, time for performance (Comp.) 

Delay in completion, cost of inspection (Comp.) 

Delay in making award (Comp.) 

Delay, liquidated damages (Comp.) 

Delays in completing, unforeseeable cause (Comp. ) 

Delays in performance, adjustment of unliquidated 
damages (J. A. G.) 

Delays in performance, damages (Comp.) 

Delays in performance, exclusion of future bids ( J. A. G . ) 

Delays in performance, excuses (J. A. G.) 

Deliveries of supplies after expiration of (('omp.) 

Delivery of supplies after expiration of contract (Comp.). 

Eight-hour law, application to retaining bulkheads sup- 
plied by contractor (J. A. G.) 

Employment of alien labor ( J. A. G . ) 

in Excess of appropriations (J. A. G.) 

Failure of defaulting contractor to pay laborers and ma- 
terial men, withholding payments (J. A. G.). 

Failure of subject matter of, due to act of God (J. A. G.). . 

Failure of successful bidders to enter into, liability of 
guarantors (J. A. G.) 

Failure to accept bid within time limit, liability of 
guarantors (J. A. G.) 

Failure to perform, piu'chase in open market, damages 
(Comp.) 

Filing supplemental, in returns office (J. A. G.) 

Final payment without protest, reopening accounts 
(Comp.) 

Final settlement, claim for additional payment, juris- 
diction (Comp.) 

Formal, for purchase of supplies (Comp. ) 

Formal, sec. 3744, Revised Statutes, construed (Fed. 

Ct.) : 

Form for leasing quarters by offer and acceptance 
(Comp.) 

Government assistance, adjustment (Comp.) 

Impossibility of performance ( J. A. G . ) 

Indemnity against infringement of patents (J. A. G.) 

iiiability of Government as carrier of contract supplies 
(J.A.tT.) . .... 

Liquidated damages after supplemental contract (Comp.) 

Liquidated damages, deduction for, where none in fact 
resulted (Comp.) 

Liquidated damages, waiver of time limit (Ct. Cls.) 

Note. — This decision reversed by United States 
Supreme Court. 

Loss by fire before acceptance of work (J. A. G.) 

Misstatements in specifications, warranty (Fed. Ct.) 

Modifications of, and payment of damages (At. Gen.). . . 

Modifications of, relea-ses sureties (J. A. G.) 

Notice to make delivery of articles purchased, suffi- 
ciency (J. A. G.) 

Open-market jmrchases as measure of damage (Comp.) . 

Opon-maiket jjurchases, order in excess of needs during 
life of . Comp. ,) 



Year. 


No. 


1913 


29 


1914 


1 


1913 


17 


1915 


14 


1913 


18 


1913 


17 


1915 


30 


1914 


20 


1914 


46 


1912 


12 


1913 


27 


1912 


12 


1913 


38 


1915 


9 


1916 


8 


1914 


33 


1913 


18 


1913 


1 


1914 


50 


/ 1915 


5 


1 1913 


29 


]9]5 


5 


1915 


5 


1914 


5 


1914 


14 


1913 


17 


1917 


9 


1915 


5 


1916 


1 


1914 


33 


1913 


27 


1913 


29 


1912 


12 


1914 


5 


1914 


25 


1915 


14 


1913 


8 


1913 


35 


1914 


25 


1912 


12 


1913 


4 



1912 
1913 

1915 



12 



166 
476 



INDEX. 



705 



Bulletins. 




Contracts — Continued. 

Operation of eight-hour law (J. A. G.) 

Option to increase quantities (J. A. G.) 

PajTuents to holder of power of attorney (J. A. G.) 

Paymente where partnership is dissolved (J. A. G.) 

Penalty for delay in performing, actual damages 
(J. A. G.) 

Post exchanges may contract with Government (J. A. G.). 

Projectiles and smokeless powder, eight-hour law (At. 
Gen.) - 

Protection of laborers and material men (J. A. G.) 

Public buildings, architects employed under authority 
for fj. A. G.f. 

Public works, separate agreement under sec. 3717, R. S. 
(J. A. G.) 

Purchase of supplies for Army in absence of appropria- 
tions (Comp.) 

Purchase of supplies from persons in military service 
(J. A. G.) 

Release of contractor from performance (J. A. G.) 

Relief from, where troops are removed (J. A. G.) 

Relief of contractor, advance of material and demand 
for skilled labor (J. A. G.) 

Replacing automobile tires on failure to make guar- 
anteed mileage (J. A. G.) 

Requirements under eight-hour law (J. A. G. ) 

Return of (Returns Office), disclosure of confidential 
plans (At. Gen.) 

Right of Government to cancel (J. A. G.) 

Supplemental agreements (J. A. G.) 

Supplemental, competition useless, agreement with 
ongiual contractor (J. A. G.) 

Supplemental, covering matter not included in original 
(J. A. G.) ,.^ 

Supplemental, liquidated damages, waiver (Fed. Ct.).. 

Supplemental, time for completion (Comp.) 

Supplemental, time for performance (Ct. Cls.) 

Supplemental, to cover defective work (J. A. G.) 

Supplementary, time for completion (J. A. G.) 

Supplies, relief on account of increased K.T. A. G.)... 
prices due to European war l(At. Gen.) . . 

Supplies, renewals for new tiscal year (Comp.) 

Surety may be party to contract (J. A. G.) 

Time for completion, deductions for delays (Comp.) 

Time for completion, extension (Comp.) 

Time for completion, liquidated damages (Ct. Cls. ) 

Unforeseen conditions, not contemplated by parties 
(J. A. G.) 

Unforeseen difficulties in performance of (Fd. Ct.) 

Unliquidated damages, breach of, jurisdiction of ac- 
counting officers (Comp. ) 

Waiver of defects in goods delivered (J. A. G.) 

Warranty of existing conditions, inspection (Ct. Cls.). . . 

When requirements as to advertisements are satisfied 
(J. A.G.) 

Withdrawal of bids before acceptance (At. Gen.) 

Written proposals and acceptances, transportation rates 

(Comp.) 

Contract Surgeons — 

Status as to pay and allowances (J. A. G.) 



1914 
19l:i 
1914 
1913 

1912 
1913 

1913 
1913 

1912 

1912 

1917 

1914 
1913 
1913 

1917 

1914 
1913 

1912 
1913 
1913 

1912 

1914 
1914 
1913 
1914 
1913 
1913 
1914 
1915 
1914 
1913 
1913 
1915 
1913 

1916 
1916 

1914 
1913 
1912 

1913 
1913 

1915 

1913 



Page. 



5 

1 

8 

23 

20 
23 

1 
1 

20 

20 

18 

43 
17 
13 

18 

52 
1 

12 

38 

4 

20 

39 
46 
13 
20 
27 
29 
46 

5 
14 

8 
17 
14 
17 

34 



46 
17 
12 



17 

1 

38 



332 
109 
345 
230 

33 
231 

137 
109 

34 

34 

679 

421 
192 
175 

673 

449 
109 

21 
175 
147 

33 

408 
436 
183 
373 

248 
270 
431 
470 
367 
155 
200 
482 
201 

608 
552 

433 

192 

24 

156 
205 

462 

316 



93668°— 17- 



-45 



706 



INDEX. 



Bulletins. 




No. 



1 
31 



Copyrights — 

Compilations by Government clerks ( J . A . G . ) 

Photographs made by Government employees (J. A. G.) 
Corps op Engineers — 

See Engineers, Corps of. 
Cosmetics and Perfumeries — 

Sales by post exclianges, internal-revenue stamps (J. 

A. G.) 

Counsel — • 

Courts- martial, officers of Judge Advocate General's De- 
partment not available as (J. A. G.) 

Courts-martial — 

/See aZso Discipline; Punishment; Sentences. 

Accuser as member of court (J. A. G.) 

Carelessness delaying action on record of trial (J. A. G.). 

Combining separate offenses to make offense of grand 
larceny (J. A. G.) 

Conduct regulations, punishment additional to sentence 
imposed by (J. A. G.) 

Depositions, expenses of taking (J. A. G.) 

Discipline, effect of approval of sentence by reviewing 
authority, a portion of which is simultaneously re- 
mitted (J. A. G.) 

Enlisted men, Marine Corps, serving with Army, allow- 
ances on discharge (J. A. G.) 

Findings, amending specification, failure to state offense 
(J. A. G.) 

Findings, lack of care by court (J. A. G.) 

Findings, resulting in delay (J. A. G.) 

Findings, trials for desertion, absence without leave 
(J. A'^.G.) 

Hearsay evidence, not admissible because made by 
officer in official investigation (J. A. G.) 

Illegally constituted, effect (J. A. G.) 

Jurisdiction of special (J. A. G.) 

Legality of sentence of stoppage of pay to reimburse post 
exchange (Comp.) 

Member of court as witness for prosecution, plea of 
guilty (J. A. G.) 

Naval, jurisdiction of, for offense committed by Marine 
while detached serving with Army (Fed. Ct.) 

Objection to member can be made at any time in pro- 
ceedings (J. A. G.) 

Officers of Judge Advocate General's Department as 
counsel (J. A. G.) 

Officers preferring charges sitting as members of court 
(J. A. G.) - - 

Pay and allowances of dishonorably discharged soldiers 
during suspension of sentence (Comp.) 

Power of, to reduce noncommissioned officer to noncom- 
missioned officer of lower grade (J. A. G.) 

Probation, period of duty under enlistment (J. A. G.).. 

Publication of sentence, jurisdiction to amend (J. A. G.) 

Punishment additional to sentence imposed by, conduct 
regulations (J. A. G.) 

Record, erroneous, lack of care (J. A. G.) 

Record, erroneous, reconvening court (J. A. G.) 

Record, incomplete, correction (J. A. G.) 

Records, unnecessary return to court (J. A. G.) 

Remission of sentence of Marines, termination of de- 
tachment with Army before execution of (J. A. G.). 

Retention of soldiers guilty of moral turpitude not 
favored (J. A. G.) 

R,etired officers members of (J. A. G.) 



1913 
1913 



1915 


1 


1915 


9 


1914 
1915 


8 
39 


1914 


39 


1914 
1913 


46 
17 


1912 


12 


1915 


30 


1915 
1915 
1915 


39 
36 
36 


1915 


36 


1917 
1913 
1913 


18 
38 
38 


1914 


33 


1914 


52 


1915 


36 


1917 


18 


1915 


9 


1914 


8 


1914 


52 


1916 
1915 
1915 


13 

1 
5 


1914 
1915 
1915 
1915 
1915 


46 
36 
36 
36 
39 


1914 


52 


1917 
1917 


18 
15 



INDEX. 



707 



Bulletins. 



Courts-martial — Continued . 

Review of proceedings by civil courts (Fed. Ot.) 

Sentence forfeiting pay — effect of on certain items 
(Comp.) 

Sentence not complete until action of rexiewing 
authority (J. A. G.) 

Sentence of dishonorable discharge, effect on prior un- 
served enlistment (J. A. G.) 

Sentence of dishonorable discharge, suspension of, 
when proper (J. A. G.) 

Sentence of forfeiture of pay, when commences to run 
(Comp.) 

Sentence to dishonorable discharge while serving prior 
sentence, cumulative sentences (J. A. G.) 

Sentences, extended periods of confinement not includ- 
ing hard labor (J. A. G.) 

Sentences, failure to follow prescribed forms (J. A. G.). 

Summary and special courts, jurisdiction (J. A. G.) 

Summary courts, appointment of (J. A . G . ) 

Summaiy courts, appointment of medical reserve of- 
ficers as (J. A. G.) 

Summary courts, constitution of (J. A. G.) 

Summary courts, eligibility of retired officers as, when 
assigned to recruiting duty (J. A. G.) 

Summary courts, eligibility of retired officers on active 
staff duty to serve as ( J . A . G . ) 

Suspended sentence, form for (J. A. G.) 

Suspended sentence, pay during confinement (J. A. G.) 

Theft of blanket by one soldier from another. Article of 
War violated (J. A. G.) 

Trial of officers of Philippine Scouts (Sup. Ct., P. I.)... 

Trial of officer who availed himself of bankruptcy law 

to escape payment of debts (J. A. G.) 

Criminal Code — 

Federal, section 13, "Military expedition or enter- 
prise" (Fed. Ct.) 

Customs Stamp Tax — 

Philippine Islands, exemption of Government property 
(At. Gen.) 

Soldier's baggage (J. A. G.) 

Damages — 

Actual, for delay in performance of contracts (J. A. G.). 

Adjustment of unliqiiidated, for delays in performance 
of contract (J. A. G.) T 

Contracts, modification and payment of (At. Gen.). 

Delay in performance of contracts (Comp.) 

Delays in completing contract, unforseeabie causes 
(Comp.) 

Liability of contractor until property is turned over to 
United States (J. A. G.) 

Liability of town for damages resulting from defective 
bridge (J. A. G.) 

Liquidated, deduction for, where none in fact resulted 

(Comp.) 

. Measure of, after supplemental contract (Comp.) 

Measure of, against contractor on annulment and relet- 
ting (Fed. Ct.) _. 

Measure of, for Government horse injured during ship- 
ment by common carrier (J. A. G.) 

Misstatement in specilications, warranty (Fed. Ct.) 

Mistake in transmitting telegram (J. A. G.) 

Private property by tort of officer (J. A. G.) 

Property constructed under contract damaged before 
acceptance (J. A. G.) 



Year. 


No. 


1914 


25 


1915 


3G 


1913 


13 


1916 


8 


1915 


36 


1915 


9 


1915 


36 


1915 
1915 
1913 
1913 


39 
39 
35 
13 


1914 
1914 


52 
46 


1915 


9 


1914 
1914 
1914 


52 
46 
46 


1912 
1913 


20 
31 


1914 


52 


1916 


34 


1912 
1915 


12 
14 


1912 


20 


1912 
1912 
1913 


12 
12 
29 


1914 


46 


1913 


8 


1913 


4 


1915 
1914 


14 

25 


1914 


39 


1914 
1914 
1914 
1913 


39 
25 

46 

17 


1913 


17 



708 



INDEX. 



Bulletins. 



Damages — Continued. 

Public property on account of neglect (J. A. G.) 

Repairs to private barge damaged by Government 

(Comp.) : 

Settlement of, by auditor, breach of contract (Comp.). . 

Torts of Government agents (J. A. G.) 

Torts of soidiers, liability (J. A. G.) 

Unliquidated, breach of contract, jurisdiction of ac- 
counting officers (Comp.) 

Death Gratuity — 

See also Beneficiary ; Gratuity. 

Statute not applicable to Nurse Corps (Comp.) 

Debts — 

Ci\dlian employees, failure to pay (J. A. G.) 

Due United States, deduction from travel pay of en- 
listed men on discharge (Comp.) 

Officer availing himself of bankruptcy proceedings to 

escape payment of (J. A. G.) _- 

Stoppage of pay of enlisted men to reimburse United 

States (J. A. G.) 

Deceased Persons — 

Army officer, issue of commission in name of (At. Gen.). 
Enlisted men , disposition of valueless effects of (J. A . G.). 
Enlisted men, gratuity, what constitutes misconduct 

(J. A.G.) - 

Officers and soldiers, gratuity, carelessness or accident 

not misconduct (.J . A. G.) 

Decisions of Comptroller. See Comptroller of the Treas- 
ury. 
Deductions from Pay. See Pay of enlisted men; Pay of 

officer.^. 
Delegates — 

War Department representative at refrigeration con- 
gress (.J. A. G.) 

Delegation of Authority — 

Sign transportation requests (J. A. G.) 

Dental Corps — 

Retirement of officers on failure to pass physical exam- 
ination (J. A. G.) 

Dental Surgeons — 

Absence from disease due to misconduct (J. A. G.) 

Absence without proper authority (J . A. G.) 

Acting, not Army officers (J. A. G.) 

Acting, tenure and discharge (J. A. G.) 

Advancement in rank, pay, and allowances (J. A. G.). . 
Length of service, computation under national defense 

act (Comp.) 

Relative rank, national defense act (J. A. G.) 

Reorganization of corps under national defense act 

(J. A.G.)... 

Tenure and discharge of acting (J. A. G.) 

Department — ■ 

of Commerce. See Commerce, Department of. 
of Interior. See Interior, Department of the. 
Department Commanders — 

Discharge by, under fourth article of war (J. A. G.) 

Depositions — 

Essential facts to be covered ( J. A. G .) 

Expenses of, for courts-martial, how paid (J. A. G.). .. . 
Deposits — 

Enlisted men, disposition of (Comp.) 

Enlisted men, liability of, indebtedness to United States 

and post exchange (Comp.) 

Forfeiture of, ))y desertion, restoration to duty (J. A. G.) 



Year. 


No. 


1913 


8 


1914 
1916 
1912 
1914 


5 
13 
20 
20 


1914 


46 


1917 


18 


1914 


46 


1912 


12 


1914 


52 


1915 


1 


1912 
1913 


12 

27 


1912 


12 


1912 


12 


1913 


31 


1914 


1 


1917 


18 


1913 
1913 
1915 
1913 
1916 


29 

29 

5 

27 
47 


1916 
1916 


28 
34 


1916 
1913 


18' 
27 


1912 


12 


1915 
1913 


39 
17 


1913 


35 


1916 
1915 


13 
39 



INDEX. 



709 



Bulletins. 



Deserters — 

See also Desertion. 

Apprehension of wrong man, expenses (Comp.) 

Disapproval of sentence, transportation from place of 

trial to organization, stoppage for (J. A. G.l 

Effect of statute of limitations as to payment of reward 

(J. A. G.) 

Enlistmemts, discharged from first and held to second 

(J. A. G.) 

Expense of returning to proper station (J. A. G.) 

Forfeiture of deposits not affected bv restoration (J. A. 

G) -....: 

National Guardsmen, organization mustered out, reward 
for apprehension (J. A. G.) 

Payment of reward, militiamen or National Guardsmen, 
in service of United States (J. A. G.) 

Removal from active list (J. A. G.) 

Reward for apprehending while serving in Navy or 
Marine Corps (J. A. G.) 

Reward for apprehension, additional expense (J. A. G.) 

Pv-eward for aj)]irehension, claim for arresting after sur- 
render to military authorities (J. A. G.) 

Reward for apprehension, confined in prison, informa- 
tion as to (J. A. G.) 

R-eward for apprehension, delivered as absent without 
leave but tried for desertion (J. A. G.) 

Reward for apprehension, stoppage of pay (J. A. G.) .. . 

Rewards for, when delivered to military authorities, but 
not accepted (J. A. G.) 

Telegrams concerning, by whom payable (Comp.) 

Transportation of remains (J. A. G.) 

Desertion — 

See also Deserters. 

Charge of, removal after discharge of soldier (J. A. G.) . 

During Civil War, charge of, when may be removed 
(J.A.G.) 

Forfeiture of pay and allowances accrued under prior 
enlistment (J. A. G.) 

Forfeiture of right to gratuity (J. A. G.) 

Intention to report at another post, no defense (J. A. G.) 

Noncommissioned ofTicer, effect on position (J. A. G.) .. 

Noncommissioned officer, reduction to ranks (J. A. G.) . 

Resignation of officers during Civil War, join Confeder- 
acy (J. A. G.). .. .... 

Restoration of civil rights by pardon (J. A. G.) 

Pi.etirement of enlisted men, counting time spent in 

confinement for (J. A. G.) 

Detached Service — 

See r^^o Details. 

Battalion adjutant, commanding company (J. A. G.). 

Commanding officer of supply company (J. A. G.) 

Compelling officer to proceed to point for identifica- 
tion by civilian witnesses (J. A. G .) 

Construction of law limiting, full opinion (J. A. G.). . 

Date when ])enalty clause becomes effective (J. A. G.) . 

Definition of terms — 

" Actually present for duty " (J. A. G.) 

"Company, troop, or battery" (J. A. G.) 

"Detached for duty of any kLnd" (J. A. G.) 

Detail to Bureau of Insular Affairs (J. A. G.) 

Duty as adjutant of brigade by captain or field officer 
not detailed in Adjutant General's Department 
(J. A. G.j , 



Year. 


No. 


1914 


14 


1915 


30 


1913 


1 


1912 
1014 


20 
14 


1915 


, 39 


1916 


47 


1916 
1915 


2S 
18 


1912 
1912 


20 
12 


1912 


' 12 


1912 


12 


1912 
1915 


12 
36 


1914 
1913 
1915 


33 

8 
18 


1915 


14 


1913 


4 


1914 
1913 
■1915 
1915 
1913 


50 
18 
36 
21 
11 


1915 

1913 


9 
23 


1912 


20 


1915 
1917 


26 
15 


1914 
1912 
1913 


50 

22 

1 


1913 
1913 
1913 
1913 


1 

1 

1 

13 


1914 


33 



Page. 



710 



INDEX. 



Bulletins. 



Detached Service — Continued. 

Duty as adjutant, National Guard Division (J. A. G.). 
Elisjibility of officers of Porto Rico Regiment for (J. 

A. G.) 

Exercising command when not present with company, 

two-company commands (J. A. G.) 

Field officer performing duty as commanding officer 

and in other capacities in connection with Coast 

Artillery (J. A. G.) 

Garrison duty, in command of detachment (J. A. G.). . 
Headquarters company or troop, command of (J. A. G.) . 

Instruction of regimental recruits (J. A. G.) 

Instructors at joint camps, regulars, and Organized 

Militia (J. A. G.) 

Laws, not amended by National Defense Act (J. A. G.) . 
Officer above grade of major on staff duty (J. A. G.). . . 

Officer ab,sent with leave (J. A. G.) 

Officer commanding detachment of his company (J. A. G.) 

Officer commanding garrison detachment (J. A. G.) 

Officer commanding machine-gun platoon (J. A. G.). . . 

Officer commanding mine planter (J. A. G.) 

Officer in command of guard (J. A. G.) 

Officer not ciualiiied for, can not assume duties while 

on leave of absence (J. A. G.) 

Officer on duty as squadron adjutant (J. A. G.) 

Officer serving as witness in civil court (J. A. G.) 

Officers, newly appointed (J. A. G.) 

Officers of Army, full opinion on law governing (J. 

A.G.) - 

Penalty for wrongfully ordering or permitting (J. A. G.) . 

Philippine Constabulary (J. A. G.) 

Philippine Scouts, duty with (J. A. G.) 

Promotion of officer while on staff duty (J. A. G.) 

Regimental adjutants, Field Artillery (J. A. G.) 

Regimental adjutants, service with troops, when oper- 
ative (J. A. G.) 

Ser\'ice en route on transport (J. A. G.) 

Ser^dce in Ordnance Department (J. A. G.) 

Service in Philippine Constabulary (J. A. G.) 

Ser^dce with troops, macliine-gun troops (J. A. G.) 

Staff departments (J. A. G.) 

Staff ride exercises, accompanied by troops (J. A. G.). . 
Status of officer when statute relating to, is inoperative 

(J.A.G.) ,. 

Status while traveling, on leave, or awaiting orders 

(J.A.G.) 

Student officer at foreign military school (J. A. G.) 

Training infantry rifle team, not duty with troops 

(J. A. G.) 

Umpire at target practice. Coast Artillery Corps (J. 

A.G.) 

When examination for, may be taken (J. A. G.) 

Detached Officer's List — 

Details therefrom (J. A. G.) 

Details — 

See also Detached service. 

of Clerks and employees, diversion of appropriations by 

(J.A.G.) 

Construction of law limiting, full opinion (J. A. G.; 

from Detached officers' list (J. A. G.) 

Officer as principal assistant to Chief, Bureau of Insular 

Affairs, duration of (J. A. G.) 

Officers of Armv, full opinion as to law governing (J. A. 

G.) : 



Year. 


No. 


1917 


9 


1917 


18 


1914 


33 


1914 


39 


1915 


21 


1916 


39 


1913 


29 


1914 


39 


1916 


47 


1914 


25 


1913 


1 


1913 


4 


1915 


21 


1913 


4 


1913 


1 


1915 


32 


1913 


1 


1917 


3 


1913 


4 


1915 


21 


1912 


22 


1913 


31 


1914 


25 


1916 


47 


1915 


1 


1917 


3 


1916 


18 


1913 


38 


1913 


1 


1913 


27 


1915 


39 


1916 


18 


1916 


13 


1914 


33 


1914 


46 


1913 


1 


1915 


26 


1914 


39 


1913 


4 


1916 


57 


1914 


43 


1912 


22 


1916 


57 


1912 


20 


1912 


22 



INDEX. 



711 



Bulletins. 




Details — Continued. 

Officers on Alaska railroad construction (J. A. G.) 

Officers, Quartermaster Corps, act of Aug. 24, 1912 (J. 

A. G.) 

Officers to educational institutions (J. A. G.) 

to Ordnance Department, how made (J. A. G.) 

to Philippine Constabulary, detached service (J. A. G.) 

to Quartermaster Corps (J. A. G.) 

in Staff departments, detached service law (J. A. G.) . 

to Staff departments, how made (J. A. G.) 

of Staff officer as officer of the day (J. A. G.) 

Disbursing Officer — 
See also Accounts. 

Issuance of second original check, original lost (Comp.) . 
Jurisdiction of the Comptroller over accounts of (Comp.) 
Officers' Reserve Corps members, assignable as (J. A. G.) 
Responsibility for payment made on forged signatures 

(Comp.) 

Disbursements — 

Manner of payments to foreign creditors (Comp.) 

Under overruled decisions (Comp.) 

Discharge — 

See also Discharged officers; Discharged soldiers. 

to Accept commission, convenience of Government 

(J. A. G.) 

Deduction of indebtedness due United States from 

travel, pay on (Comp.) 

Department commander may order, under fourth 

Article of War (J. A. G.) 

Dishonorable. See Dishonorable discharge. 

Dishonorable, notice of (J. A. G.)... 

Effect of unauthorized (J. A. G.) 

Enlisted men arrested and confined by civil authori- 
ties, pay on condonation of offense and (J. A. G.) 

Enlisted men, dependent families (J. A. G.) 

Enlisted men, dependent foster parent (J. A. G.) 

Enlisted men, for convenience of Government (J. A. G.) 
Enlisted men, National Guard, account of dependent 

family ( J . A . G . ) , 

Enlisted men, National Guard, after President's call 

(J. A. G.) 

Enlisted men. National Guard, for physical disability 

(J. A. G.) 

Enlisted men, signing by staff officer (J. A. G.) 

Enlisted men, transportation upon (Comp . ) 

Enlisted rflfen. National Guard, unauthorized (J. A. G.) - 
Deserter, from first and held to second enlistment (J. 

A.G.) 

Officers, National Guard, for physical disability (J. A. 

G.) , 

Purchase of, continuous service (Comp.) 

Purchase of, effect on Army reserve enlistments (J. A. 

G.) , 

Purchase of, enlisted man, one year's service (J. A. G.) . 

Purchase of, furlough to Army Reserve (J. A. G.) 

Purchase of, while on furlough (J. A. G.) 

by Retiring board, action of President on report of 

(J. A.G.) 

Pi.e vocation of dishonorable, insanity (3. A. G.) 

Without honor (J. A. G.) 

Without honor, not revocable (J. A. G.) 



1914 



1912 


20 


1913 


13 


1913 


1 


1913 


- 4 


1914 


25 


1913 


1 


191G 


18 


1913 


8 


1915 


32 


1915 


36 


1917 


15 


1917 


3 


1917 


3 


1913 


38 


1913 


38 


1916 


57 


1912 


12 


1912 


12 


1915 


36 


1917 


15 


1912 


20 


1916 


28 


1912 


20 


1917 


18 



1916 
1916 



1916 


28 


1914 


52 


1915 


32 


1917 


15 


1912 


20 


1916 


28 


1912 


12 


1913 


29 


1915 


39 


1916 


18 


1914 


1 


1912 


12 


1915 


1 


1913 


1 


1913 


27 



Page. 



25 



18 



28 



712 



INDKX. 



i^ullctins. 




Page. 



Discharged Officers — 
See also Discharge. 

Travel allowances (J. A. G.) 

Discharged Soldiers — 
See also Discharge. 
AdiTiission to Soldiers' Home when able to earn living 

(J. A. G.) 

Charge for berth reserved for, on transportation request 

(Comp.) 

Charges against, removal (J. A. G.) 

Election of routes of travel (J. A. G.) 

Excess cost of transportation by longer route (J. A. G.). . 
Insane, shipment and disposition of effects of (J. A. G.). 
Subsistence when tra^■eling by longer route (J. A. G.) . . . 

Transportation fi'om place of discharge (Comp. ) 

Transportation in kind furnished but not used (J. A. G.) . 

Transportation of (Comp. ) 

Transportation to point selected within continental 

limits of United States (J. A. G.) 

Transportation ^-arying from request (Comp.) 

Travel allowances between United States and Alaska 

(C'omp.) 

Travel allowances not subject to deductions (Comp.)... 

Travel allowances over longer route (Comp.) 

Travel allowances, sleeping-car accommodation8(Comp.) 
Travel allowances when enlisted in Philippines (Comp. ) . 
Using transportation requests as part payment on 

through trip fare (Comp.) 

Disciplinary Companies — 

Quarters for officers in command of (J. A. G.) 

Discipline — 

SiC aZso Courts-martial ; General Prisoners; Punishment; 

Sentences. 

Computation of time of sentence (J. A. G.) 

Confinement of military prisioner in Canal Zone peni- 
tentiary (J. A. G.) 

Effect of approval of sentence by reviewing authority, 

a portion of wliich is simultaneously remitted (J. A. G.) 

Enlisted man awaiting trial (J. A. G.) 

Enlisted men, failure to produce clothing atinspection, 

Article of War ( J. A . G . ) . . . ._ 

Failure of soldier to disclose disease (J. A. G.) 

Punishment in reducing soldiers from first-class privates 

(J. A. G.) ■- ---. 

Remission of punishment as to lost files after promotion 

(J. A.G.) 

Soldier absent without leave, cost of transportation 

(J. A. G.) 

Discounts — 

on Bills for gas consumed (Comp.) 

Dishonorable Discharge — 
See also Discharge. 
Continuous-serATce pay on reenlistment after f (Comp.). . 

completed enlistment and subsequent. . . .\(J. A. G.) . 
Designation of prisoners under suspended sentence of 

(J. A. G.) 

Effect of, on prior unserved enlistment (J. A. G.) 

Enlisted men, revocation of, insanity (J. A. G.) 

Honorable restoration of prisoners to duty (J. A. G.). . . 

Notice of (J. A. G.) _ 

Pay and allowances of soldiers sentenced to, during 

suspension of sentence (Comp.) 



1914 



1914 



20 



39 



1914 


46 


1915 


14 


1914 


5 


1914 


50 


1914 


50 


1913 


4 


1914 


43 


1915 


5 


1915 


32 


1914 


33 


1914 


43 


1913 


1 


1914 


14 


1913 


17 


1914 


5 


1913 


8 


1915 


1 


1915 


5 


1913 


38 


1912 


20 


1912 


12 


1913 


23 


1912 


20 


1913 


29 


1912 


12 


1913 


13 


1913 


29 


1913 


17 


1914 


33 


1914 


39 


1914 


46 


1916 


8 


1915 


1 


1914 


8 


1915 


36 


1914 


52 



INDEX. 



713 



Bulletins. 




DisTRTcT OF Columbia — 

Burial expenses of indigent ex-Union soldiers dying in 

(J. A. G.) 

Eight-hour law for women (J. A. G.) 

Erection of buildings in public parks (J. A. G.) 

• Militia, clerks and employees as members of, leave of 

absence (J. A. G.) 

Militia of, residence of meml)ers (J. A. G.) 

Number of officers. General Staff Corps, to be on duty 

in (J. A. G.)-.;,., 

Retirement of militia olTicers (J. A. G.) 

Service in, boards recommending details. General Staff 

Corps (J. A. G.) 

Donations — 

Gift of flag for dredge (J. A. G.) 

Improvements at national cemetery (J. A. G.) 

Land. See Land. 

of Personal property. See Personal property. 
Dredging — 

Eight-hour law, application of to retaining bulkheads 

supplied by contractor (J. A. G.) 

Easements — 

Telegraph line on abandoned road (J. A. G.) 

Educational Institutions — ' 

See aho Schools. 

Details of officers of Army as instructors (J. A. G.) 

Members of Officers' Reserve Corps not eligible for de- 
tail to (J. A. G.) 

Uniforms purchased from War Department, cost to 

students (J. A. G.) 

Eight-hour Law — 

Application of, to informal contracts (J. A. G.)_ 

Application to contract for furnishing ammunition (At. 

Gen. ) ; 

Application to contracts for Government supplies (At. 

Gen.) 

Application to horse breakers and farm hands (J. A. G.) 

Application to renovation of blankets (J. A. G.). . . 

Application to retaining bulkheads for deposit of 

dredged material (J. A. G.) 

Application to subcontractors (At. Gen.) 

Appropriations made before passage of (At. Gen.) 

Chauffeurs, not applicable to (J. A. G.) 

Claim for overtime pay under (J. A. G.) 

Construction of barges as "public works" (J. A. G.). . . 
Construction of Government dredge, not "public 

works" (J. A. G.) 

Construction of spur track for the delivery of contract 

supplies (J. A. G.) 

Contractor continuing labor on other contracts after 

eight-hour limit (J. A. G.) _ 

Contracts for construction of vessels for United States 

(J. A. G.) -.... 

Contracts for wagons for Army, Government specifica- 
tions (J. A. G.) - 

Contracts for projectiles, smokeless powder, etc. (At. 

Gen.) 

Domestic servants not subject to (J. A. G.) 

Dredging, use of private funds (J. A. G.) .._. 

Employment of laborers and mechanics on repairs to 

Government vessels (At. Gen.) 

Exceptions to requirements (J. A. G.) 

Extraordinary emergency (J. A. G.) 

Extraordinary emergency and conditions (J. A. G.) 



No. Paa:e. 



1915 
1914 
1914 

1912 
1913 

1916 
1914 

1916 

1913 
1914 



1914 
1913 

1913 

1916 

1915 

1913 

1912 

1912 
1914 
1913 

1914 
1912 
1913 
1916 
1917 
1914 

1915 

1914 

1913 

1913 

1913 

1913 
1913 
1913 

1912 
1913 
1913 
1913 



1 

14 

5 

20 
18 

28 
14 

18 

38 
25 



33 
29 

13 

39 

14 

8 

20 

20 
43 
31 

33 

12 

23 

8 

18 
5 

21 

25 

8 

1 

1 

1 

17 
18 

20 

1 

31 

18 



456 
357 
334 

32 
217 

594 
357 

573 

319 

379 



395 

275 

176 

617 

480 

158 

51 

52 
418 
213 

395 
21 

245 
545 
674 
332 

499 

379 

158 

109 

117 

51 
194 
214 

51 
117 
292 
212 



714 



INDEX. 



Bulletins. 



Eight-hour Law — Continued. 

Extraordinary emergency, mobilization (J. A. G.) 

Extraordinary emergency within meaning of (J. A. G.). 

Flying machines, contracts for purchase (J. A. G.) 

Government employees, payment for overime (J. A. G.) 

Laborers employed on dredges (At. Gen.) 

Material for erection of public buildings (^At. Gen.) 

Purchase of supplies, water and electric light, stevedor- 
ing (J. A. G.) - 

Stokers on Government vessels (J. A. G.) 

Telegraph operators (J. A. G.). . .' 

Tools and appliances, manufacture of (J. A. G.) 

Women employees of War Department, telegraph office 

(J. A.G.) 

Working laborers on two separate contracts (J. A. G.)... 
Employees. See Clerks and employees. 
Encampments and Maneuvers. See Militia. 
Engineer Department — 

Purchases made by another bureau or department from, 

adjustment of appropriations for (Conip.) 

Engineer Detachment — 

Military Academy, distribution of profits of post ex- 
change (J. A. G.) 

Military Academy, status of (J. A. G.) 

Engineer School — 

Specific and general appropriations, application to 

(J. A.G.) 

Engineers, Corps of — - 

Officers, appointment from civil life (J. A. G.) 

Officers, employment on civil works (At. Gen.) 

Transfer of line officers to (J. A. G.) 

Vacancies in, how filled (J. A. G.) 

Enlisted Men — 

See also Enlisted men. National Guard; Enlistment. 
Absence due to misconduct, making good time lost 

(J. A. G.) - 

[(J. A.G.).. 
(Comp.)... 
<^(J. A. G.). 
(J. A.G.).. 
[(J. A.G.).. 

Absence in confinement, forfeiture of pay (Comp.) 

Absence in confinement, making good time lost (J. A. G.) . 

Absence, making good time lost (J. A. G.) — , 

Absence on 31st day of month, deductions for (Comp.).. 
Absence without leave, amendment of Army Regula- 
tions as to rewards for soldiers convicted of (J. A. G.). 
Absence without leave, deductions from pay (J. A. _G.).. 
Absence mthout leave, detained by civil authorities 

(J. A.G.) ; 

Absence ^vithout leave, expense of returning to com- 
mand, voluntary service (J. A. G) 



Absence due to misconduct, stoppage of pay, 
etc., during. 



Absence wnthout leave, making good time lost (J. A. G.). 

Active list of Regular Army, service in Volunteer forces 
or militia when called into service of the United 
States (J. A. G. )...,. 

Appointment as cadets, eligibility (J. A. _G.) 

Army Reserve, construction of law creating, full opin- 
ion (J. A. G.) 

Army Reserve, eligibility for examination for commis- 
sion (J. A. G.) _ ; - - - 

Army Reserve, employment of, in the civil service 
(J. A. G.) 



Year. 



1913 
1912 
1917 
1914 
1913 
1913 

1913 
1913 
1913 
1914 

1914 
1913 



1914 



1912 
1912 



1914 

1914 
1913 
1917 
1913 



1914 
1913 
1913 
1914 
191 i 
1914 
1914 
1914 
1916 
1913 

1915 
1913 

1912 

1914 
1912 
1913 



1914 
1917 

1912 

1915 

1914 



No. 


Page. 


18 


215 


12 


9 


3 


641 


25 
1 


380 
136 


17 


205 


18 


213 


29 


274 


29 


275 


25 


380 


14 


357 


13 


179 


46 


434 


20 


40 


20 


40 


33 


392 


20 


364 


29 


286 


18 


676 


18 


210 


39 


407 


8 


154 


29 


280 


8 


343 


33 


392 


43 


416 


50 


446 


39 


407 


1 


539 


35 


311 


1 


4G0 


4 


148 



20 

50 

20 

1 



39 
9 

22 

1 

33 



INDEX. 



715 



Bulletins. 



Enlisted Men — Continued. 

Army School Detachment, absence due to misconduct, 
deduction of pay (Comp.) 

Arrest by State court, civil proceeding for debt (J. A. G.). 

Arrested and confined by civil authorities, condonation 
of offense and discharge, pay (J. A. G.) 

Authority of retired officers assigned to active duty to 
command (J. A. G.) 

Aviation mechanician, pay and allowance on furlough 
(J. A. G.) 

Brigade headquarters, employment of (J. A. G.) 

Certificate of merit, time of making recommendation 
for (J. A. G.) 

Chief musician, reduction to ranks (J. A. G.) 

Civil employment while on furlough (J. A. G.) 

Civil employment while on furlough preceding retire- 
ment (J. A. G.) 

Clothing allowance, title to (J. A. G.) 

Continuous service, on active list of Regular Army, 
service in Volunteer forces or militia when called 
into service of United States (J. A. G.) 

Continuous-service pay. See Pay of enlisted men. 

Courts-martial sentence to forfeiture of pay, when be- 
gins to run (Comp.) 

Deposits, liability for debts to United States and post 
exchange (Comp.) j. 

Detail of, for service with National Guard (J. A. G.) 

Detailed as corporal in recruiting service when dis- 
charged, reenlistment pay (Comp.) 

Discharge by purchase, furlough to Reserve (J. A. G.). . 

Discharge, dependent family (J. A. G) 

Discharge for convenience of. Government (J. A. G.). . . 

Discharge for convenience of Government, acceptance 
of commission (J. A. G.) ' 

Discharge on account of dependent foster parent 
(J. A. G.) 

Discharges, signing of, by staff officer (J. A. G.) 

Discipline, failure to produce clothing at inspection 
(J. A. G.) 

Dishonorable discharge, revocation of, insanity (J. A. G.) . 

Dishonorably discharged, while serving prior sentence, 
cumulative sentences (J. A. G.) 

Disposition of deposits upon discharge (Comp.) 

Disposition of effects of deceased, jurisdiction (J. A. G.). 

Disposition of remains of deceased, reward for recovery 
of body (J. A. G.) 

Eligibility for membership in Officers' Reserve Corps 
(J. A. G.) 

Employment as laborers (Comp.) 

Employment as stenographic reporters (J. A. G.) 

Engaging in civil employments on furlough (J. A. G.). . 

Engaging in commercial business, hiring out automo- 
biles (J. A. G.) 

Engaging in private business (J. A. G.) 

Enlistment for seven years, etc., construction of pro- 
vision, full opinion (J. A. G.) , 

Examination for commission, credit for National 
Guard service (J. A. G.) 

Examinations for commissions, eligibility (J. A. G.) 

Expenses of civil authorities for detention of (J. A. G.) 

Expenses of officers and, with their mounts, attending 
mounted competition (J. A. G.) 




1916 
1916 

1912 

1914 

1916 
1916 

1912 
1916 
1914 

1917 
1916 

1914 

1915 

1916 
1916 

1912 
1916 
1916 
1917 

1916 

1912 
1914 

1912 
1915 

1915 
1913 
1912 

1914 

1917 
1916 
1913 
1917 

1912 
1915 

1912 

1917 
1916 
1917 

1914 



Page. 



47 
8 

20 

52 

18 
34 

20 
18 
33 

3 

57 

39 



13 

28 

20 

18 
28 
18 

57 

20 
52 

20 
1 

36 
35 
20 

39 

9 

8 

23 

3 

12 
5 

22 

18 
47 
15 

50 



716 



INDEX. 



Bulletins. 




Enlisted Men — Continued. 

Extradition to another State for prosecution by civil 

authorities (J. A. G.) 

Extra-duty pay as telegraph operator (Vt. Cls.) 

Extra duty, service at Military Academy (('omp.) 

Failure to disclose disease (J. A. G.) 

Farrier, abolishment of grade (J. A. G.) 

Furlough, civil employment of, while on (J. A. G.) 

Furlough for retirement, civil employment of (J. A. G.) 

Furlough, ordered to duty, transportation (Comp.) 

Furlough, returning from, cost of transportation (J. A. G.) 
Furlough to Reserve, indebted to United States 

(J. A. G.) 

Furlough to Keserve, transportation allowances (Comp.) 

Furlough without pay (J. A. G.) 

Gratuity. See Gratuity. 

Heat and light, allowance in kind while on temporary 

duty in fic4d (.1. A. G.) 

Injured while cleaning arms, line of duty (J. A. G.). . . 

Lance corporal, appointment (J. A. G. ) 

Liable for indebtedness to United States, contracted 

during preceding enlistment (J. A. G.) 

Loss of civilian clothing by, reimbursement (J. A. G.). 
Making good time lost by absence without leave (J; 

A. G.) 

Marine Corps, jurisdiction of na^'al court-martial for 

offense committed while detached serving v,'ith Army 

(Fed. Ct.) '. 

Marine Corps, tried while serving with Army, allow- 

an<'e on discharge (J. A. G.) 

Medical Department, rank of sergeants, first class (J. 

A. G.).: 

Noncommissioned officers, detail for duty with Na- 
tional Guard, number authorized (J. A. G.) 

Noncommissioned officers on temporary duty not en- 
titled to fuel allowance at permanent station (J. A. G.) 

Pay. See Pay of enlisted men. 

Pay dming absence. See this title, Absence. 

Period of enlistment fixed at seven years, etc., con- 
struction of, full opinion (.T. A. G.) 

Post exchange, responsibility for money collected at 
pay table as due to (J. A. G.) 

Power of State to imprison, nonpayment of poll tax 
(Fed. Ct.) .^. 

Probation of garrison prisoners, period of duty under 
enlistment (J. A. G.) 

Promotion, grade second lieutenant (J. A. G.) 

Promotion in Quartermaster Corps, subject to, full 
opinion (J. A. G.) 

Purchase of discharge, one year's ser^dce (J. A. G.) 

Purchase of discharge while on furlough (J. A. G.). ... 

Purchase of envelopes for sale to officers and (Comp.). . 

Quartermaster Corps, substitution for civilians, full 
opinion (J. A. G.) 

Quartermaster Corps, to take place of civilian employ- 
ees (J. A. G.) 

Quarters, heat and light, allowance while on furlough 
or temporary duty (( 'omp. ) 

Quarters, not public, occuj)ied by, while on temporary 
duty, heat and light for (J. A . G.) 

Quarters, on temporary duty, commutation of (Comp.). 

Rations, commutation of (.1 . A. G.) 

Reduction of grades uuder national-defense act (Comp.) 



1915 


5 


1914 


1 


1912 


12 


1913 


29 


1916 


34 


1914 


33 


1917 


3 


1915 


30 


1914 


33 


191fi 


18 


1915 


36 


191G 


18 


1915 


36 


1915 


9 


1917 


9 


1916 


18 


1916 


13 



1912 



20 



1915 


36 


1915 


30 


1917 


15 


1917 


3 


1915 


5 


1912 


22 


1912 


12 


1916 


1 


1915 
1916 


1 
13 


1912 
1915 
1914 
1914 


22 

39 

1 

33 


1912 


22 


1912 


20 


1915 


30 


1914 
1916 
1916 
1916 


39 

47 

8 

28 



INDEX. 



717 



Bulletins. 




Enlisted Men — Continued. 

Reenlistment after four years' service (J. A. G.) 

Reeniistment after four years' service and passing to 

Reserve (J. A. G.) 

Reenlistment pay, computation of extra-duty pay 

(Comp. ) 

Repairs to property used by Government owned by 

officers and (J. A. G.) 

Retired. See Retired enlisted men. 

Retired pay status on enlistment in National Guard 

(Comp.) 

Retirement, commissioned service counted for purpose 

of (J.A. G.) 

Retirement, counting time spent in confinement for 

desertion (J. A. G. ) 

Retirement, Philippine service (J. A. G.) 

Returning from furlough, cost of transportation (J. A. G.) 
Reward for recovery of bodies of deceased (J. A. G.). . . 
Sergeants, limited warrant, appointment of (J. A. G.). . 

Sleeping-car accommodations for (J. A. G.) 

Stoppage of pay, absence during test as to natui'e of 

disease (J. A. G.) 

Stoppage of pay to reimburse the United States (J. A. G.) 
Surrendering to civil authorities under fifty -ninth 

article of war (J. A. G.) 

Transportation from place of discharge (Comp.) 

Transportation from place of discharge varying from 

request (Comp.) 

Transportation on discharge (Comp.) 

[(J.A. G.) 

Travel allowances on discharge. . < (Comp.). . . .• 

[(Comp.) 

Travel allowances on discharge, transportation varying 

from request (Comp.) 

Travel pay on discharge, deduction of indebtedness due 

United States (Comp.) 

Travel without troops, Pullman-car accommodations 

(J. A. G.) 

Enlisted Men, National Guard — 

Age qualification for enlistment (J. A. G.) 

Aviation service, increase pay for (J. A. G.) 

Clothing issued to, discharged for disability (J. A. G.). . 
Discharge by State authorities after President's call 

(J.A. G.) 

Discharged on account dependent families, effect of 

(J. A. G.) 

Discharge of, for physical disability (J. A. G.) 

Discharge, term of enlistment (J. A. G.) 

Eligibility for membership in Officers' Reserve Corps 

(J.A. G.) 

Enli^tiiient, disqualification, conviction of felony 

( J. A. G .) 

Federal oath, effect of taking (J. A. G.) 

Furlough of, to reserve, restoration to active list (J. A. G.) 

Furlough to reserve (J. A. G.) 

Medical treatment in private hospital, cost of (Comp.) . 
Medical treatment in private hospital at time of muster 

out (Comp.) 

Passing of to National Guard Reserve while in Federal 

service (J. A. G.) 

Passing to reserve, restoration to active duty (J. A. G.). . . 
Pay and allowavnces, in United States service (Comp.). . 



1916 
1914 
1912 
1914 

1917 
1916 



1912 


20 


1913 


4 


1914 


33 


1914 


39 


1917 


9 


1912 


20 


1913 


8 


1917 


15 


1915 


1 


1912 


12 


1914 


43 


1914 


43 


1915 


32 


1913 


1 


1914 


43 


1916 


18 


1914 


43 


1912 


12 


1915 


36 


1916 


47 


1916 


34 


1916 


57 


1916 


28 


1916 


34 


1916 


28 


1917 


9 


1917 


9 


1916 


39 


1916 


47 


1917 


3 


1916 


47 


1917 


3 


1917 


18 


1916 


28 


1916 


47 


1916 


34 



43 
12 
50 

15 
39 



718 



INDEX. 



Bulletins. 



Enlisted Men, National Guard — Continued. 

Qualifying as gunner, additional pay (Comp.) 

Recruits, pay of between enlistment and date of muster 
in or rejection (Comp.) 

Transfer of, by State authority after call to Federal 
service (J. A. G.) 

Unauthorized discharge of (J. A. G.) 

Uniform, retention of after muster out (J. A. CJ.) 

Enlisted Reserve Corps — 

Pay of civilian employee while receiving training in 

(J.A.G.) 

Enlistment — 

See also Enlisted men; Enlisted men. National Guard; 
Fraudulent enlistment. 

Antedating, continuous-service pay (J. A. G.) 

Completion of, on restoration, time awaiting trial and 
result not counted toward (J. A. G.) 

Continuous-service, discharge for convenience of 
Government (J. A. G.) 

Deserter, discharged from first and held to second 
(J.A.G.) 

Disqualification, conviction of felony, National Guards- 
men (J. A. G.) ■ 

Eligibility, applicant committed for truancy (J. A. G.). 

Forfeiture by desertion of pay and allowances accrued 
under prior (J. A. G.) _- ■ 

Indian Scouts, application of regular enlistment con- 
tract to (J. A. G.) 

Limits of age for, sec. 27, national-defense act (J. A. G.). 

Making up lost time (J. A. G.) _ 

Marine Corps, when it becomes effective (Comp.) 

Members of Army Reserve in Organized Militia, em- 
ployment as stablemen (J. A. G.) 

Minor, appointment of guardian to consent to (J. A. G.) 

Minor, without consent, ratification of (Fed. Ct.) 

National Guard, age qualification (J. A. G.) .--.--- 

in National Guard, minors under 18, not eligible 

(J.A.G.) ;- 

in National Guard under State law, status while in 
Federal service (J. A. G.) 

Probation of garrison prisoners, period of duty under 
(J.A.G.) 

Qualification of Indians (J. A. G.).. 

Reenlistment after four years' service (J. A. G.)._. 

Reenlistment after four" years' service and passing to 
Army Reserve (J. A. G.) 

Reenlistment pay, compiitation of (Comp.) _. . 

Reqnlistment pay for soldiers detailed as corporals in 

recruiting service when discharged (Comp.) 

Enrollment — 

Determining date when soldier in Civil War enrolled 

(J.A.G.) 

Envelopes — 

Penalty, transmission of library books (J. A. G.) 

Penalty, use by post laundries (J. A. G.). 

Penalty, use in connection with expenditure of com- 
pany fund (J. A. G.) 

Penalty, use of (J. A. G.) 

Purchase of, for sale to officers and enlisted men (Comp.) 

Use by contractors, forwarding suppUes (J. A. G.) 

European War — 

See also Contracts. 

Relief of contractors for supplies on account KJ. A. G.) . 
of increased prices due to l(At Gen.) . 




1916 

1916 

1916 
1917 
1917 

1917 

1915 

1917 

1913 

1912 

1916 
1915 

1914 

1915 
1916 
1913 
1912 

1916 
1914 
1913 
1916 

1916 

1916 

1915 
1916 
1916 

1914 
1912 

1912 

1913 

1914 
1912 

1916 
1914 
1914 
1915 



1914 
1915 



28 

47 

47 

15 

3 

18 

1 

3 

35 

20 

39 
32 

50 

9 
18 

1 
12 

8 
46 
17 
47 

28 

18 

1 

47 



43 
12 

20 



1 
20 



1 
33 

18 



46 
5 



INDEX. 



719 



Bulletins. 




Page. 



..VIDENCE — 

See also Witness. 

Compelling officer to proceed to point for identification 
by civilian \\dtnesses (J. A. G.) 

Corroboration in case of confession (Fed. Ct.) 

Credibility of defendant as witness (St. Ct.) 

Hearsay, not admissible because made to officer in an 

investigation (J. A. G.) 

'Examinations — 

Dental Corps officers for promotion, retirement on fail- 
ure as to physical (J. A. G.) 

Field officers, promotion, sec. 24, national defense act 
(J. A. G.) 

of Officers for promotion (J. A. G.) 

for Promotion, eligibility of enlisted men of Army Re- 
serve (J. A. G.) 

for Promotion, failure to pass, exemptions on reexami- 
nation (J. A. G.) 

for Promotion, officer's general efficiency, how deter- 
mined (J. A. G.) 

Personal, transfer of officers (J. A. G.) 

Veterinarians, scope of (J. A. G.) 

Examining Boards — 

Appointment on, of members of Officers' Reserve Corps 
(J. A. G.) 

Composition of first, for veterinarians (J. A. G.) 

Exchange — 

Payment of salaries of officers abroad, cost of (Comp.). . 
Exchange Council — 

Shortage in accounts of exchange, responsibility for 

(J. A. G.) 

Exchange Officer — 

Shortage in accounts of exchange, responsibility for 

(J.A.G.) 

Executive Departments — 

Cancellation of bonds on acceptance of new (J. A. G.). . 

Chief Clerks may designate clerks to administer oaths 
(J.A.G.) 

Disposition of useless official records (J. A. G.) 

Employees. See Clerks and employees. 

Expenses of distribution of publications by (J. A. G.). . 
Exemptions — 

from Service in National Guard, waiver of (J. A. G.) . . . 
Exhibitions — ■ 

Exhibiting Government horses at horse shows and 

(J.A.G.) 

Ex-Officers — 

Recommissioning in Army (J. A. G.) 

Expenses — • 

Military attache abroad, pay of orderly and for tips 
(Comp.) 

Military attaches abroad, traveling (Comp.) 

Officers and enlisted men, with their mounts attending 
mounted competition (J. A. G.) 

of Officers and guard in producing prisoner in response 
to writ of habeas corpus (J. A. G.) 

of Returning soldiers to theii' command, absent without 
leave (J. A. G.) 

Transportation of Army officers entertaining foreign 
officials (Comp.) 

Traveling. See Traveling expenses. 

Treatment of civilians in Government hospitals (J. 
A. G.) 



1914 
1917 
1914 

1917 



1917 



1915 



1915 



1915 


9 


1917 


15 


1912 
1916 


20 

8 


1912 


20 


1916 


28 


1914 


50 


1917 


15 


1914 
1914 


43 
43 


1914 


50 


1914 


52 


1914 


50 


1914 


43 



50 
18 
20 

18 



18 



1916 
1913 


18 

4 


1915 


1 


1915 


32 


1916 
1917 
1916 


28 
18 

28 


1916 
1916 


57 
18 



191. 



720 



INDEX. 



Bulletins. 


Year. 


No. 


Page. 


Extra Compensation — 








Contract, construction of, on claim for (J. A. G.) 


1912 


12 


6 


Extradition — 








Transfer of enlisted man to another State for prosecu- 








tion by civil authorities (J. A. G.) 


1915 


5 


466 


Extra Duty — 








Enlisted men in Quartermaster Corps (J. A. G.) 


1913 


4 


145 


Pay. See Pay of enlisted men. 








Extraordinary Emergency — 








See also Eight-hour law. 








Meaning of, which excepts employees from eight-hour 








law (J. A. G.) 


1912 


12 


9 


Extras — 








Not agreed to in writing, claim of contractor for (J. A. G. ) 


1915 


1 


457 


Extra Work 








Contracts, cost of work (Ct. Cls.) 


1912 


12 


24 


Due to faulty design, claim for (J. A. G.) 


1917 


18 


673 


Farm Hands — 








Application of eight-hour law ( J. A . G . ) 


1914 


43 


418 


Farrier — 








Abolishment of grade of (J. A. G.) 


1916 


34 


608 


Fees and Licenses — 








See a?so Chauffeurs; Government Agencies; Taxation. 








Impovsed by States for operation of Government auto- 








mobiles (J. A. G.) 


1914 


52 


453 


Procurement of local licenses by chauffeurs for opera- 








tion of motor vehicles 


1917 


18 


671 


Field Clerks — 




Allowances date of commencement (Comp.) 


1917 


15 


668 


Employment of as courts-martial reporter (J. A. G.)-. 


1917 


9 


648 


Heat and light allowances (J. A. G.) 


1917 


15 


661 


Field Officers — 








See also Officers, Army. 








Duty as adjutant of brigade when not detailed in Ad- 








jutant General's Department, detached service 








(J. A. G.) ■ 


1914 


33 


394 


Examination for promotion, sec. 24, national defense 








act (J. A. G.) 


1916 


18 


563 


Performing duty as commanding officer and in other 








capacities in connection with Coast Artillery (J. A. G.) . 


1914 


39 


40£ 


Files Lost. See Discipline. 








Findings. See Courts-m.arlial. 








' Fire — 








See also Contracts. 








Damage by, to leased buildings, repairs (J. A. G.) 


1914 


20 


36£ 


Loss, by, responsibility before acceptance of work 








(J. A.' G.) 


1913 


35 


304 


Fishing Nets — 








Na^dgable water, an obstruction to navigation (J. A. G.). . 


1914 


33 


•m 


Floods — 








Militia, accounting for "tent equipage loaned by gov- 








ernor for relief of sufferers from (J. A. G.) 


1912 


12 


r: 


Transportation on Government bill of lading, loss by 








"i^mpi'ecedented (Ct. (Ms. ) 


1912 


12 


2( 


Voluntary transportation, relief of sufferers (J. A. G.). . 


1913 


18 


2K 


Florida — 








Discriminating against Army uniform, etc., prohibited. . 


1917 


. 18 


68^ 


Forage — 








Allowance for to retired officers on active duty (J. A. G.). . 


1915 


26 


50( 


Allowance of, to battalion adjutant performing duties 








of company commander (J. A. G.) 


1915 


26 


50^ 


for Extra horses (J. A. G.) 


1913 


1 


lU 


Issue for horses used Ijut not owned by military attaches 








as mounts (Comp.) 


1912 


20 


4f 



INDEX. 



721 



Bulletins. 



Forage — Continued. 

Mounts for military attaches abroad, payments for 

(Comp.) 

Mounts not complying with regulations (Comp.) 

Mounts not owned by officers (Comp.) 

Not available for extra mounts (J. A. G.) 

Officer on leave of absence .A) y "^T q \ 

Foreign Cables — 

Permission from President to land in navigable waters 

of United States (J. A. G.) 

Foreign Country — 

Use of militia in. See Militia. 
Foreign Government — 

Service for, performed by employees of U. S. Govern- 
ment, compensation (J. A. G.) 

Foreign Officials — 

Transportation of Army officer engaged in entertaining 

(Comp.) 

Foreign Service — 

Details to Philippine Constabulary (Comp.) 

Limitation of, Philippines and Canal Zone (J. A. G.).. 

Pay. See Pay of ofhcers: Pay of enlisted men. 

Pay clerks. See Pay clerks. 

Physical presence in Untied States (Comp.) 

Tour of duty, request of extension (J. A. G.) 

Forfeitures — 

Absence from active duty on account of confinement 
(Comp.) 

Courts-martial sentences to, when begin to run (Comp.). 

of Deposits by desertion, effect of restoration (J. A. G.). 

Desertion, pay, and allowances accrued under prior 
enlistment (J. A. G.) 

Pay of enlisted men, items affected by (Comp.) 

for Wrongful detached service (J. A. G.) 

Forgery — 

Responsibility of disbursing officers for payment made 

upon (Comp.) 

Fort Bayard, N. Mex. — 

Civil-service employees, military jurisdiction over 

(J. A. G.) 

Fortifications — 

Purchases of material abroad (J. A. G.) 

Fraudulent Enlistment — 

Minor, without consent of parents or guardian (Fed. Ct.) 
Freight — 

Basis of charges, shrinkage of weight en route (Comp.). 
Fuel — • 

Sec also Heat and light. 

Allowances of noncommissioned officers on temporary 
duty not entitled to, at permanent station (J. A. G.). 

Allowance to officers, use by families of (Comp.) 

Issue in kind to civilian employees of Quartermaster and 
Medical Corps (J. A. G.) 

Sale of, to civilian, postmistress at Army post (J. A. G.). 
Funeral Expenses— 

Disposition of remains of Army nurses dying in service 

(J. A. G.) 

Furloughs — 

Enlisted men on. See Enlisted men. 
Garrison Prisoners — 

on Probation, period of duty under enlistment (J. A. G.) 

93668°— 17 46 



Year. 


No. 


1914 
1914 
1913 
1913 
1913 
1913 


33 
5 

13 

13 
4 

23 


1914 


39 


1913 


1 


1914 


43 


1913 
1915 


23 
18 


1913 
1916 


38 
8 


1914 
1915 
1915 


50 

9 

39 


1914 
1915 
1913 


50 
36 
31 


1917 


3 


1912 


20 


1913 


35 


1915 


18 


1915 


36 


1915 
1912 


5 
12 


1914 
1914 


43 
33 


1914 


50 


1915 


1 



404 
337 
185 
181 
151 
228 



412 



124 



424 

238 
489 



323 
546 



446 
477 
533 

440 
524 
292 



646 

40 
307 
494 
524 



467 
19 

418 
400 



442 



460 



722 



INDEX. 



Bulletins. 


Year. 


No. 


Page. 


Gasoline — 

Furnishing for officers' piivate automobile used in 

Government service, not authorized (J. A. G.) 

General Prisoners — 

See also Courts-martial ; Discipline; Military Prisoners. 

Burial expenses (J. A. G.) 

Enlisted men of Marine Corps serving -with Army, trans- 
portation and allowances (J. A. G.) 


1915 

1913 

1915 
1914 

1916 
1914 

1912 

1916 
1913 
1916 

1916 

1913 
1913 
1913 
1913 
1913 

1913 

1912 
1915 

1913 

1913 

1915 

1915 
1913 

1913 

1913 

1914 
1912 

1912 

1912 
1916 

1912 

1912 
1912 


36 

18 

30 

8 

18 
5 

22 

18 
1 

18 

28 

17 
17 
23 

27 
27 

1 

20 
5 

35 

8 

1 

1 

18 

23 

8 

52 
20 

12 

12 
28 

20 

20 

20 


521 

211 
509 


Restoration to duty (J . A. G. ) 


349 


Transportation allowance on discharge, continental 
limits of United States (J. A. G.) 

Transportation on discharge (J. A. G.) 

General Staff Corps — 

Additional members of, full opinion (J. A. G.) 

Boards for recommending details to, service in District 
of Columbia (J A G ^ 


58 :i 

336 

9G 

573 


Composition of (J A G ^ 


103 


Increases under national defense act (J. A. G.) 

Officers, number authorized to be on duty in District 
of Columbia (J. A. G.) 

General Supply Committee — 

Army supplies for use in District of Columbia (At. Gen.) . 
Purchase of screws by Signal Corps (Comp.) 


573 

594 

205 
202 


Piu'chases for Armv service in District of /(Comp.).. . 

Col umbia : \(J. A. G . ) . . 

Supplies for office of Chief of Staff (Comp. ) 


239 
254 
262 


Gifts. See Donations. 
Gold Coin — 

Loss by abrasion in shipment (Comp.) 


132 


Government Agencies — 

/See aZso Chauffeurs; Fees and Licenses; Post exchanges; 

Taxation. 
Company barber shops, billiard and pool tables, whether 

constitute (J A G ) 


38 


Inspection of Government horses at State lines (Comp.). 

Leasing portions of military reservations for benefit of 

(JAG) 


469 
306 


Post exchange officer liable for shortage in accounts (Ct. 
C Is ) 


171 


Post exchanges, pavment of internal-revenue tax (J. A. 
G) . -' 


459 


Post exchanges, sales of cosmetics and perfumeries, in- 
ternal-revenue stamps (J. A. G.) 

Post exchanges, sales of liquors at (J. A. G.) 

Settlement for supplies purchased for United States (J. 
A. G.) 


459 
216 

232 


Stoppage of soldiers' pay to reimburse post exchange 
(Comp ) 


167 


Taxation by States, licenses and fees for operation of 

automobiles (J. A. G.) 

Taxation on military reservations, automobiles (J. A. G.) . 
Government Bill op Lading — 

Transportation, loss by unprecedented floods (Ct. Cls.) . . 
Government Employees — 

See also Clerks and employees. 

Eight-hour law applicable to, extraordinary emergency 
(JAG) 


453 
41 

26 
9 


Torts of Government not liable (Comp.) 


602 


Government Hospital for Insane — 

Admission of clerks and employees to, after discharge 
(JAG) 


32 


Admission of discharged soldier to, legal residence (J. 
AG) .... 


38 


Admission of widow of Army officer to (J. A. G.) 


39 



IIsrDEX. 



72: 



Bulletins. 



Government Property — 

Philippine Islands, exemption from customs stamp tax 
(At. Gen.) 

Government vService — 

Credit assistant veterinarian with (J. A. G.) 

Government Supplies — 

Application of eight-hour law to contracts for (At. Gen.) . 
Government Transportation Requests. See Transpor- 
tation requests. 
Government Vessels — 

Eight-hour law, employment of laborers, etc., in mak- 
ing repairs to (At. Gen.) 

Gratuity — 

See also Beneficiary. 

Beneficiary, effect of will (Comp.) 

Carelessness or accident not misconduct (J. A. G.) 

Designation of beneficiary (Comp.) 

Enlisted men, death of beneficiary before receiving 
(Comp.) 

Forfeited by desertion (J. A. G.) 

Laws applicable to National Guard in service of United 
States (Comp.) 

Not payable on death of soldier, what constitutes mis- 
conduct (J. A. G.) 

Payable on death of soldier, what constitutes miscon- 
duct (J. A. G.) _- 

Pay for mounts, officer in aviation service (Comp.) 

Statute not applicable to Nurse Corps (Comp.) 

Guaranties — 

Disposition of certified check received as (J. A. G.) . . . . 
Guarantors — 

See also Contractors; Contracts. 

Failure to accept bid within time limit, liability of 
(J. A. G.) 

Liability on failure of successful bidder to enter into 

contract (J. A. G.) 

Guardian and Ward — 

Appointnient, consent to enlistment of minor (J. A. G.). 
Gunners — 

Additional pay for qualifying as. National Guardsmen 
(Comp.) 

Additional pay, National Guardsmen qualifying as 
(J. A. G.). 

Pay of, Reservist called to colors ( J . A . G . ) 

Habeas Corpus — 

Arrest by military authorities without probable cause 
(Fed.Ct.) 

Exj^enses of officer and guard producing prisoner in re- 
sponse to writ of (J. A. G.) 

Minor enlisting without parent's or guardian's consent, 
fraudulent enlistment (Fed . Ct. ) 

Release of minor from enlistment (Fed. Ct.) 

Review of court-martial proceedings (Fed Ct. ) 

Soldiers arrested by State authorities (Fed. Ct.) 

Harbor Lines — 

Navigable waters, riparian rights, paramount authority 
of United States (Fed . Ct.) 



Year. 


No. 


1912 


12 


1917 


15 


1912 


20 


1912 


20 


1915 

1912 
f 1913 

1913 
<^ 1913 

1914 
i 1916 


26 
12 
23 
29 
31 
5 
39 


1912 
1913 


12 
18 


1916 


28 


1912 


12 


1912 
1916 
1917 


12 
1 

18 


1915 


30 


1915 


5 


1915 


5- 


1914 


46 


1916 


28 


1916 
1916 


39 

47 


1913 


17 


1914 


52 


1915 
1913 
1914 
1916 


18 
17 
25 
39 


1914 


46 



Page. 



724 



INDEX. 



Bulletins. 



Heat and Light — 

See also Fuel; Quarters, Army. 

Allowance delivered to odicer's family (J. A. G.) 

Allowance in kind, enlisted men on temporary duty in 

field (J. A. G.) 

Allowance in public quarters (J. A. G.) 

Allowance only for rooms actually occupied (Comp. ) 

Allowance to family of officer of temporary duty, change 
of permanent station (J. A. G.) 

Allowance to Navy and Marine Corps (Comp.) 

Allowance to officer abroad (Comp.) 

Allowance to officer sick in hospital, change of station, 
regiment (J. A. G.) 

Allowance under varying conditions, oflicer on com- 
mutation status (Comp.) 

Allowances for field clerks (J. A. G.) 

at Both temporary and permanent quarters (J. A. G.) 

Certificate as to number of rooms (Comp.) 

Commutation of , commencing July 1, 1915 (Comp.) 

Commiitation of, enlisted men on furlough or temporary 
duty (Comp.) , 

Commutation of heat, conditions governing payment 
(Comp.) 

Commutation of, rented quarters, officer on duty in 
field (J. A. G.) , 

Commutation of, temporary duty training camps 
(J.A.G.) 

Commutation, rented quarters, temporary duty on 
border (J.A.G.) 

Fictitious lease of quarters (Comp.) , 

Fm-nished family of oflicer on temporary duty (Comp.) . . 

Furnished in vicinity of regular station (Comp.) 

Furnished officer's family, when (Comp.) 

Furnishing officer's allowance to his family at place 
other than his station (J.A.G.) 

Furnishing to his quarters while officer is on temjjorary 
duty with troops (J. A. G.) 

Increased allowance on promotion (Comp.) 

Issued to servant in officer's absence (J. A. G.) 

Noncommissioned officers on temporary duty not enti- 
tled to, at permanent station (J. A. G.) 

Noncommissioned officers, quarters outside of post (J. 
A. G.) 

Officers of Revenue Cutter Service (Comp.) 

Officers on leave of absence (Comp.) 

Officers on temporary duty (Comp.) 

Pay clerks (J.A.G.) 

Payment of commuted value, rooms actually occupied 
((Jomp.) 

Quarters, not public, occupied by officers and enlisted 
men on temporiury duty (J. A. G.) 

Quarters shared by civilian (Comp.) 

Reimbursement, house with more rooms than authorized 
allowance (Comp. ) 

Reimbursement only for amount consumed within al- 
lowance (Comp.) 

Sale of fuel to officer's family (J. A. G.) 

When issued to family of officer in his absence (J.A.G.). 

HbAIKJUARTEUS OlU'.ANIZATIONS — • 

Service with troops. See Detached service. 



Year. 


No. 


1914 


5 


19L5 


36 


1914 


5 


/ 1913 
1 1914 


27 


5 


1916 


1 


1913 


23 


1913 


31 


1916 


18 


1910 


8 


1917 


15 


1914 


8 


1914 


5 


1915 


18 


1915 


30 


1916 


13 


1916 


47 


1916 


18 


1915 


30 


1915 


14 


1915 


9 


]913 


1 


1913 


1 


1914 


50 


1914 


43 


1913 


4 


1914 


8 


1915 


5 


1915 


21 


1914 


50 


1914 


5 


1914 


5 


/ 1915 
\ 1915 


5 


21 


1913 


23 


1914 


39 


1914 


25 


1914 


46 


1913 


4 


1914 


5 


1913 


1 



INDEX. 



725 



Bulletins. 



Holiday Pay — 

See also Holidays. 

Civilian employees, temporary (Gomp.) 

Computation of, for piece work, civilian employees 
(Comp.) 

nt)LIDAYS — 

See also Holiday pay. 

Flight of aviator on, without orders, lineof duty(J. A. G.) 

Pay of civilian employees (J. A. G.) 

HOMF. — 

Army officer, selection on retirement (Comp.) 

Horse Breakers — 

/) pplication of eight-hour law to ( J. A. G.) 

Iaorses — 

Army officers', not regarded as baggage on change of 
station (Comp.) 

Army, condemned, issued to Militia, transportation 
charges ( Comp . ) 

Claims for loss of, in military service (Ct. Cls.) 

Furnished officials serving abroad (J. A. G.) 

Government exhibiting at horse shows (J. A. G.) 

Inspection of Government, at State lines, reimbiuse- 
ment oi common carriers tor (Comp.) 

Issue of forage to, when used as mounts but not owned 
by military attaches (Comp.) 

Lost in military service, claims for (Ct. Cls.) 

Military attaches abroad, payments for forage, stabling, 
etc. (Comp.) 

Militia, mounts for officers participating in joint ma- 
neuvers (J. A. G.) 

Mounted competition, expenses of attending (J. A. G.) 

JNational Guard oificers, transportation on muster out 
(J. A.G.) -^ 

Officers, shipment of, after resignation (J. A. G.) 

Officers, transportation of (J. A. G.) 

Officers, transportation on change of station, expense 
of (Comp.) 

Pay and allowance for, wliile absent on half pay ( Comp . ) , 

Responsibility for loss of, used contrary to contract of 
hhing (Comp.) 

Sufficiency of (J. A. G.) 

Transportation, authorized mounts, officers of National 
Guard (J. A. G.) 

Transportation, charges for special services rendered 
(Comp.) 

Transportation of, change of station of officer (Comp.).. 

Transportation of, from place of purchase to officer's sta- 
tion, comijutation of cost (J. A. G.) 

Transportation of officers' private mounts, land-grant 

deductions (Comp.) 

Horse Shows — 

Exhibiting Government horses at (J. A. G.) 

Participation by troop of Cavalry in (J. A. G.) 

Hospitals — 

Army, admission of sick and wounded belligerents to 
(J. A.G.) 

Army, disposition of personal property of retired soldier 
who died in (J. A. G.) 

Enlisted men of National Guard in private, at time of 
muster out (Comp.) _. _. . 

Government, expenses of treatment of civilians in 
(J. A. G.) 

Limit on expenditures for, general and special appro- 
priations (J. A. G.) 



Year. 


No. 


1917 


18 


1917 


15 


1912 
1913 


20 

1 


1912 


12 


1914 


43 


1912 


12 


1915 
1916 
1913 
1914 


36 

8 

1 

50 


1915 


5 


1912 
1917 


20 

15 


1914 


33 


1912 
1914 


20 
50 


1916 
1915 
1913 


47 

39 

4 


1915 
1916 


21 
1 


1914 
1913 


43 
29 


1916 


57 


1916 
1915 


57 
21 


1914 


33 


1917 


o 


1914 
1915 


50 
1 


1914 


43 


1914 


46 


1917 


18 


1915 


5 


1914 


50 



Page. 



726 



TISTDEX. 



Bulletins. 


Year. 


No. 


Page. 


Hospitals— Continued. 








Transportation of supplies, purcha^ied from hospital 








fund (Couip.) 


1915 


30 


511 


Treatment in. See Medical treatment. 








Hot Springs Eeservation — 








Payment for telephone service in public building on, 








used as private residence (Comp.) 


1912 


20 


50 


Hours of Labors 








SatuMay half holidays (J. A. G.) 


1913 


31 


290 


Household Goods — 








Excess allowance, land-grant deductions (J. A. G.) 


1914 


8 


350 


Includes books (Comp.) 


1913 


38 


323 


Shipment of, carrier's risk (Comp.) 


1914 


14 


361 


Shipment on Government bill of lading, carrier's lia- 








bility (Comp.) 


1913 


18 


223 


Transportation of, upon change of officer's station 








(J. A. G.) -^ 


1913 
1913 


8 
13 


350 


Transportation rates (Comp.) 


186 


Increments — 








Major fractions regarded as units, sec. 24, national 








defense act (J. A. G.) 


1916 


18 


566 


Indian Country — 




Taking liquor into (J. A. G.) 


1913 


1 


120 


Indians — 








Introducing liquors into Indian Territory (Fed. Ct.) 


1912 


12 


25 


Permission to cut hay on military reservations (J. A. G.) . 


1913 


27 


249 


Qualification of, for enlistment (J. A. G.) 


1916 


47 


626 


Status in relation to militia (J. A. G.) 


1914 


20 


364 


Indian Schools — 








Retii'ed Army officer acting as superintendent of 








(Comp . ) 


1912 


20 


50 


Indian Scouts — 








Enlistments, period of (J. A. G.) 


1915 


9 


472 


Indian Territory — 








Introducing intoxicating liquor into old (J. A. G.) 


1912 


20 


39 


Liquors, introducing into country formerly comprising 








(Fed. Ct.) ■. . 


1912 


12 


25 


Indigent ex-Union Soldiers — 








Dving in District of Columbia, burial expenses of 








(J. A. G.) 


1915 


1 


456 


Infringement op Patent — 




Indemnify contractor against (J. A. G.) 


1912 


12 


7 


Injuries — 








Federal employees, compensation for (J. A. G.) 


1912 


20 


36 


General ]irisoner, claim for damages (J. A. G.) 


1914 


5 


333 


Received by soldier while cleaning pistol, line of duty 








(J. A. G.) '.. 


1915 


9 


473 


Removal of civil-service employee who is subject to 








disabilitv which would increase pcssibilitv of accident 








(J. A.G.) -■ 


1912 


12 


5 


Insane Soldiers — 








Discharged, admission to Government Hospital for In- 








sane, legal residence (J. A. G.) 


1912 


20 


38 


Revocation of dishonorable discharge (J. A. G.) 


1915 


1 


458 


Shipment and disposition of effects after discharge 








(J. A. G.) 


1914 


50 


443 


Insanity — 








Issue shoidd be determined when raised in trial (J. A. G.) 


1915 


36 


527 


Inspections — 








Contracts, warranty of existing conditions, delay in 








completing (Ct. Cls.) 


1912 


12 


24 


Of horses. See Horses. 








Inspector General's Department — 








Composition of, under national defense act (J. A. G.).. 


1916 


18 


574 



liSTDEX. 



727 



Bulletins. 




Instruction Camps. See Military camps of instruction. 
Instructors at Joint Camps. See J\lilitia. 
Insubordination — 

Clerks and employees, pay during suspension for 

(J. A. G.) 

Insular Affairs, Bureau of — 

r etail of officer as principal assistant to chief, duration 

(J. A. G.) .- 

How chief of bureau is appointed (J. A. G.) 

Insurance — 

Hail matter, registration not parcel post (J. A. G.)... 

iloney received from, how used (Comp.) 

Parcel-post packages (J. A. G.) . 

Insurrection. See Martial law. 
Intemperance — 

See also under Enlisted Men, Absence, etc. 

Absence of soldier due to (J. A. G.) 

Interior, Department of — 

Postmasters, whether may administer oaths to officers' 

returns of contracts for file in (J. A. G.) 

Internal-Revenue Tax — 
See also Post Exchanges. 
Cosmetics and perfumeries, sales by post exchanges 

(J. A. G) 

Post exchanges, sales of tobacco, etc. (J. A. G.) 

International Association of Chiefs of Police — 

Payment of membership fees or dues of (J. A. G.) 

International Congress of Hygiene and Demography— 

Army band, use of, during session of (J. A. G.) 

International Eugenics Congress — 

Armv officer detailed to attend meetings of, expenses 

(J.A. G.) 

Intoxicating Liquors — 

Introducing into country formerly comprising Indian 

Territory (Fed. Ct.) 

Introducing into old Indian Territory (J. A. G.) 

Sale of, at exchanges in prohibition States (J. A. G.). , 

Taking into Indian country (J. A. G.) , 

Invkntions — 

by Employees, use of, by the Government (J. A. G.V . 
joint Camps of Instruction. See Militia. 
Judge Advocates — 

Carelessness of, delaying action on record of trial 

(J. A. G. )............- 

Failure in duties, miscarriage of justice (J. A. G.) 

Failure in duty, record encumbered by irrelevant testi- 
mony (J. A. G.) 

Failure in duty to produce evidence (J. A. G.) 

Judge Advocate General — 

Digest of opinions, manner of citing (J. A. G.) 

Judge Advocate General's Department — 

Officers of, not available as counsel before court-martial 

(J. A. G.) 

Jurisdiction — 

Comptroller of Treasury over disbursing officer's ac- 
counts (Comp.) 

Disposition of effects of deceased enlisted men (J. A. G.) 
Legality of sentence authorizing stoppage of pay to re- 
imburse post exchange (Comp.) 

Militaiy reservations, taxation of Government agencies 

(J. A. G.) 

Operation of State laws within military reservations 
(J. A. G.) 



1912 



1912 



1912 
1912 
1913 
1913 

1913 



20 



1912 
1913 


20 
4 


1915 
1913 
1915 


32 
29 
18 


1913 


8 


1914 


52 


1915 
1915 


1 

1 


1912 


20 


1912 


20 



20 



12 

20 

18 

1 



1915 
1915 


39 

36 


1915 
1915 


36 
36 


1912 


20 


1915 


9 


1917 
1912 


15 
20 


1914 


33 


1912 


20 


1915 


1 



728 



INDEX. 



Bulletins. 



Jurisdiction — Continued. 

Published sentence of court-martial, amendment of 

(J. A. G.) 

Remission of sentence of marine wliere detachzaent 
with Army was terminated before execution (J. A. G.) 
Kentucky — 

Discrimination against Army uniform, etc., prohibited . 
Labor Day— 

Aviation Corps, flight on, without orders, line of duty 

(J. A. G.) 

Laborers — 

Ilmployment of enlisted men as (Comp.) 

Failure of defaulting contractor to pay, withholding 

payments by United States (J. A. G.) 

Mechanics and, eight-hour law, employment in making 

repairs to Government vessel (At. Gen.) 

on Militia rifle range, State employees (J. A. G.) 

Land — 

Abstract of title, expenses for, appropriation (Comp.). 
Boundary, military reservation determined by bound- 
ary commission, res judicata (J. A. G.) 

Donation of, title to military reservations conveyed 

without cost to United States (J. A. G.) 

Donation of, title where deed was not recorded (J. A. G.) 

Excavations by adjacent owners (J. A. G.) 

Purchased by Government, rental to date of final pay- 
ment (Comp.) 

When title vests in United States (J. A. G.) 

Land-Grant Railroads — 

Computation of earnings on Government business 

(Comp.) 

Deductions, civilian employees. Signal Corps (Comp.). 
Deductions. excess baggage on change of station (Comp.) 
Deductions from extra fares, special train (Comp.)... 
Deductions, furnishings for public buildings (Comp.). 
Deductions, transportation of officers' private mounts 

(Comp.) 

Transportation, deductions for persons in military serv- 
ice (Comp.) 

Transportation of militia (Ct. Cls.) 

Transportation of militia in connection with joint en- 
campments, deductions (Comp.) 

Larceny, Grand — 

Courts-martial, combining separate offenses to make 

offense of (J. A. G.) 

Laundries — 

Post, use of penalty envelopes (J. A. G.) 

Leased Buildings. See Buildings. 
Leasing — ■ 

of Public lands. See Public lands, 
of Quarters. See Quarters, Army. 
Leaves op Absence. See Absence. 
Legal Residence — 

Insane discharged soldier, admission to Government 

Hospital for Insane (J. A. G.) 

Licenses — - 

See also Chauffeurs; Fees, License; Government 

Agencies; Taxation. 
Buildings erected under, on military reservations, title 

(J. A. G. ) 

Chauffeur's for Government employees (J. A. G.) 

Erection of buildings in Potomac Park, District of Co- 
lumbia (J. A. G.) 



Year. 


No. 


1915 


5 


1914 


52 


1917 


18 


1912 


20 


1916 


8 


1914 


50 


1912 
1915 


20 
30 


1916 


57 


1912 


12 


1912 
1912 
1913 


12 

12 

1 


1917 
1913 


18 
29 


1912 
1915 
1914 
1914 
1914 


12 

26 

8 

25 
20 


1917 


3 


1915 
1914 


14 

25 


1914 


52 


1914 


39 


1912 


20 


1912 


20 


1915 
1916 


9 

18 


1914 


5 



INDEX. 



729 



Bulletins. 



Licenses — Continued. 

Erection of permanent buildings on reservations (J. A. 
G.) 

Imposed by States for operation of Government auto- 
mobiles (J. A. G.) 

Local, by chauffeurs for operation of Government motor 
vehicles (J. A. G.) 

to Take water from Government pipe line (J. A. G.)... 

Use of military reservation by militia (J. A. G.) 

Light Allowance — 

See also Heat and light. 

Officers of Revenue-Cutter Service under Army Regu- 
lations (Comp. ) 

Lighthouse Service — ■ 

Status of employees on transfer to War Department 

a. A. G.) : 

Lighthouse Tender — • 

Damaged by vessel of Quartermaster Corps, repairs to 

(Comp.) 

Limits of Punishment. See Discipline; Punishment. 
Line op Duty — ■ 

See also Beneficiaries; Gratuity. 

Aviation Corps, flights on hoUdays without orders (J. 
A. G.) 

Death of aggressor in altercation, not in (J. A. G.) 

Injury of soldier while absent on pass (J. A. G.) 

Injury received by soldier while cleaning pistol (.J. A. 
G.) - 

Injury vdiile on hunting pass (J. A. G.) 

Sergeant assuming command while absent without leave 
(J. A.G.) 

Surgical operations (J. A. G.) 

Line Officers — 

Transfer of to Corps of Engineers (J. A. G.) 

Liquidated Damages — 

See also Contracts. 

Supplemental contracts, waiver (Fed. Ct.) 

Liquors — 

See Intoxicating liquorr^. 

Destruction of by military force (St. Ct.) 

Living Expenses^ 

See also Traveling Expenses. 

Civilian clerk of Quartermaster Corps on temporary duty 

(Ct. Cls.).... 

Longevity Pay — 

See also Pay of officers. 

of Niu'ses. See Nm'ses, Army. 

of Retired officers. See Retii-ed officers. 
Lost Files. See Discipline. 
LuMP-SuM Appropriations — 

See also Appropriations. 

r(J. A. G.) 



Increased pay of clerks, etc., from < 



Payment of clerks, etc., from 



(Comp 
(J. A.G.) 
(J. A.G.) 
(Comp.). 
(J. A. G.) 
(J. A. G.) 
(J. A.G.) 
(Comp.). 
(J. A. G.) 

(J. A. G.)---. 

(Comp.) 



Year. 


No. 


1914 


14 


1914 


52 


1917 


18 


1913 


35 


1913 


13 


1914 


50 


1917 


18 


1914 


46 


1912 


20 


1915 


26 


1913 


35 


1915 


9 


1915 


4 


1913 


1 


1913 


4 


1917 


18 


1914 


46 


1917 


15 


1914 


46 


1913 


1 


1913 


1 


1913 


17 


1913 


23 


1913 


23 


1913 


27 


1913 


31 


1913 


38 


1914 


5 


1914 


8 


1912 


20 


1912 


20 



360 

453 

671 
307 
180 

446 
675 
435 



31 

505 
305 

473 

480 

122 
145 

676 



436 
669 

436 



107 
133 
190 
226 
234 
246 
289 
315 
337 
343 
37 
48 



730 



INDEX. 



Bulletins. 


Year. 


No. 


Page. 


Machine-Gun Units— 








Militia, organization of (J. A. G.) 


1912 


12 


12 


Mail Matter — • 








See also Envelopes. 








Parcel-post packages, official business (At. Gen.) 


1913 


13 


187 


Parcels exceeding 4 pounds in weight not to be franked 








(J. A. G.) 


1913 
1915 


8 
32 


164 


Registration of, not insurance, object of (J. A. G.) 


515 


Making Good Time Lost. See Enlisted men. 








Maneuvers. See Militia. 








Manure — • 








Disposition of proceeds of sales from ambulance com- 








panies (J. A. G.) 


1914 


50 


444 


Marine Corps — 








See also Navy. 








Deserters, reward for apprehending while serving in (J. 








AG.) 


1912 


20 


35 


Enlisted men sentenced by Army court-martial, trans- 




portation and allowances (J. A. G.) 


1915 


30 


509 


Enlistment in, when becomes effective (Gomp.) 


1912 


12 


18 


Jurisdiction of naAal court-martial to try marine for 








offense committed while detached serving with Army 








(Fed. Ct.) 


1915 


36 


525 


Remission of sentence of marine where detached service 








v.ith Army was tei'minated before its execution (J. 








AG.) 


1914 


52 


453 


Retired officers acting as agents in prosecution of claims 




against the Government (At. Gen.) 


1912 


20 


52 


Marines— 








Reimbursement for quartermaster stores supplied to, 








wliile serving with Army (J. A. G.) - . . 


1914 


43 


419 


Remission of sentence where detached service with 








Army terminated before execution of (J. A. G.) 


1914 


52 


453 


Martial Law — 








Power of State governois to determine necessity for 








(St. Ct.) 


1913 


17 


208 


Powers of State officers under (St. Ct.) 


1913 


23 


244 


Private property, disposition of, taken under (J. A. G.). 


1916 


18 


579 


Responsibility for destruction of private property dur- 








ing (J. A. G.) 


1914 


33 


396 


Scope of, under declarations of State governors (St. Ct.). 


1913 


17 


208 


Maryland — 








Discrimination against Army uniforms, etc., prohibited. 


1917 


18 


684 


Massachusetts — 








Discrimination against Army uniform, etc., prohibited. 


1917 


18 


684 


Material Men— 








Failure of defaulting contractor to pay, withholding 








payments by United States (J. A. G.) 


1914 


50 


440 


Mechanics and Laborers— 








Eight-hour law, employment in making repairs to 








Government vessels (^At. Gen.) 


1912 


20 


51 


Medals op Honor — 








E\ddence necessary to obtain (J. A. G.) 


1913 


1 


121 


Findings of board under national defense act (J. A. G.). 


1917 


15 


661 


Medical Corps — 








Increase of officers (J. A. G.) 


1916 


34 


609 


Issue of fuel in kind to civilian employees (J. A. G.). . . 


1914 


43 


418 


Officers, examination for promotion, law governing (J. 








A. G.) 


1916 
1916 


18 
18 


575 


Pay of enlisted men in, national defense act (Comp.). . . 


583 


Promotions, service under prior appointment (J. A. G.). . 


1912 


20 


44 


Medical Department — 








Absorption of (tertain officers in consolidated Quarter- 








master Corps, full opinion (J. A. G.) 


1912 


■)') 


88 



INDEX. 



731 



Bulletins. 



Medical Department — Continued. 

Dental surgeons, computation of length of service, na- 
tional defense act (Comp.) 

Rank of sergeants, first class (J. A. G. ) 

Soldiers in private hospitals at time of muster out 

(Comp.) 

Mepical Equipment — 

Sale to the American Red Cross ( J . A . G . ) 

Medical Reserve Corps — 

Absence, leave of, after relief from active duty (J. A. 

G). 

Appointment of oflicers of, as summary court officers 

(J. A. G.) 

Officers, computation of time for longevity increase (J. 

A. G.). 

Officers not in active service, purchasing ordnance (J. 

A. G.) 

Pay begins with active service (J. A. G.) 

Relations of members to Army and militia (J. A. G.).. 
Medical Treatment — 
See also Hospitals. 

Army Reserve, members of (J. A. G. ) 

Army Reserve, members of (J. A. G.) 

Civilian employees (Comp. ) 

Civilian employees in hospitals (J. A. G. ) 

Employees of Mississippi River Commission (J. A. G.). . 

Employees on Government vessels (J. A. G.) 

Ofiicers injured wliile on leave (J. A. G.) 

Oflicer on leave of absence (J. A. G.) 

Osteopathic treatment not within regulation authorizing 

(J. A. G.) 

Private hospital, national guardsmen (Comp.) 

Seamen in Army transport service, appropriations (J. A. 

G.).... , 

Soldiers injured while on pass (J. A. G. ) , 

Member of Court — 
See Courts-martial. 

Objection can be made to at any time during proceed- 
ings (J. A. G.). 

Membership Fees or Dues — 

Associations, International Association of Chiefs of 

Police (.1. A. G.)... 

Mexico — 

Olficer traveling with detachment as escort to officer of 

(J. A. G.) 

Use of Army transport in rescuing American refugees in 

(J. A. G.) 

Michigan Central Railroad — 

Land-grant roads, computation of Government business 

(Comp.) 

Mileage — 

See also Transportation; Travel allowances. 
Discharged soldiers, between United States and Alaska 

(Comp.) 

Hire of automobile for officer traveling on (Comp.) 

Officer traveling with detachment as escort to officer of 

Mexican Army (J. A. G.) 

Retired officers serving as witnesses (Comp. ) 

Station changed while officer is on leave of absence 

(Comp.) 

Travel performed by officer, not under competent orders 

(J. A. G.) :.... 




1916 
1917 


28 
15 


1917 


18 


1912 


12 


1915 


14 


1914 


52 


1915 


36 


1917 
1913 
1914 


3 

38 
25 


1915 
1916 
1914 
1914 
1913 
1913 
1913 
1916 


18 

8 

14 

14 

31 

17 

4 

8 


1915 
1917 


26 
3 


1912 
1914 


12 
20 


1917 


18 


1912 


20 


1915 


1 


1912 


20 



1912 



1913 
1914 


1 
50 


1915 
1916 


1 

47 


1913 


4 


1915 


1 



12 



Page. 



732 



INDEX. 



Bulletins. 


Year. 


No. 


Page. 


Military Academy — 








-See also Cadets. 








Engineer detachment, distribution of proPts of post 








exchange (J. A. G.) 


1912 


20 


40 


Engineer detachment, status of (J. A. G.) 


1912 


20 


40 


Enlisted men appointed as cadets, eligibility (J. A. G.). 


1917 


9 


650 


Enlisted men, extra-duty pay for service at (Comp.). . . . 


1912 


12 


18 


Leave of absence for employees at (J. A. G.) 


1912 


20 


27 


Leave of absence for pay clerks (J. A. G.) 


1913 


17 


190 


Leave of absence for per diem employees at (Comp.). . . . 


1913 


23 


233 


Reappointment of cadet under sec. 1325, Revised 








Statutes ( J . A . G . ) 


1912 


12 


11 


Stoppage of pay for absence due to misconduct appli- 








cable to detachment at (J. A. G.) 


1914 


33 


392 


Teacher of French, French citizen, oath (J. A. CK) 


1912 


20 


42 


Military Attaches — 








Abroad, payment of traveling expenses (Comp.) 


1914 


46 


435 


Abroad, pay of orderly and for tips (Comp.) 


1914 


43 


424 


., 1 . ,. (.((ComT).) 


1914 
1914 


43 
50 


424 


Abroad, traveling expenses of< )j a n \ 


445 


Forage for horses used as mounts but not owned by 








(Comp.) 


1912 


20 


49 


Payments for forage, stabling, etc., mounts of, while 








abroad (Comp. ) 


1914 


33 


404 


Traveling expenses abroad as military observers ( J. A. G . ) 


1915 


9 


474 


Traveling expenses going to and returning from post of 








duty (Comp. ) 


1914 


50 


448 


"Military Expedition or, Enterprise" — 








AVhat constitutes, conspiracy (Fed. Ct.) 


1916 


34 


614 


Military Force — 








Destruction of liquor by (St. Ct.) 


1917 


15 


669 


Military Instruction — 








Issue of arms and e<iuipment to high schools (J. A. G.). . 


1913 


31 


294 


Military Camps op Instruction — 








Leaves of absence to civilian employees to attend 








(J. A. G.) 


1915 


39 


533 


Military Jurisdiction — 








Civil service employees at Fort Bayard, N. Mex. 








(J. A. G.) 


1912 


20 


40 


Military Justice. ^See Notes on military justice. 




Military Observers— 








Abroad, traveling expenses of (J. A. G.) 


1914 


50 1 445 


Traveling expenses of military attaches as (J. A. G.) 


1915 


9 


474 


Military Posts — 








See also Military reservations. 








Title to reservation conveyed without cost to Ignited 








States (J. A. G.) 


1912 


12 


16 


Military Prison — 








Quarters for officers in command of disciplinary com- 








panies at (J. A. G.) 


1915 


5 


467 


Military Prisoner.s — 








»S'ee General Prisoners; Prisoners. 








Military Reservations — 








See also Military Posts. 








Authority to make regulations for government of, viola- 








tions (J. A. G.) 


1914 


46 


430 


Boundary of, determined by boundary commission, res 




adjudicata (J. A. G.) 


1912 


12 


15 


Donation of chapel (J. A. G.) 


1913 


31 


296 


Erection of sectarian chapels on (J. A. G.) 


1912 


20 


41 


Government controls highways through (J. A. G.) 


1913 


17 


195 


Improvement of private roads leading to (J. A. G.) 


1913 


8 


161 



INDEX. 



733 



Bulletins. 



Military Reservations — Continued. 

Jurisdiction, taxation by State of Government agencies 

on (J. A. G.) 

Leases for benefit of post exchange (J. A. G.) 

License to erect permanent buildings on (J. A. G.) 

Operation of State laws within (J. A. G.) 

Permission for erection of memoi-ials on (J. A. G.) 

Permission to Indians to cut hay from (J. A. G.) 

Power of President over, same as other public lands 

(J. A. G.) ,-- 

Railroad right of way, power of Secretary of War (J. A. G.) 
Regulations as to quarantine and practice of medicine 

(J. A.G.) 

Removal of telegraph lines (J. A. G.) 

Repair of railroad siding on (J. A. G.) 

Sale of sewage from (J. A. G.) 

Title conveyed without cost to United States (J. A. G.). 
Title to buildings erected on, under license (J. A. G.). . . 

Use of, by Organized Militia (J. A. G.) 

Military Service — 

Claim for horses lost in (Ct. Cls.) 

Loss of private property in (Ct. Cls.) 

Purchase of supplies from persons in (J. A. G.) 

Military Supplies — 

Purchase of, by Organized Militia (J. A. G.) 

Military Training Camps — 

Medical supplies for (J. A. G.) 

Public property, sales of, to attendants (J. A. G.) 

Militia — 

See also National Guard. 

Accountability for property (J. A. G.) 

Accounting for tent equipage loaned by governor for 

relief of flood sufferers (J. A. G.) _. 

Aids to commanders in chief and brigadier generals 

(J. A.G.) .-■:----. 

Army officers holding commissions in (J. A. G.) 

Army officers on active list, acceptance of office in 

(At. Gen.) .^ _. . 

Army officers on active list holding office in, compati- 
bility (J. A. G.) 

Authority of President to send outside of United States 

(At. Gen.) _. _ 

Called into service of United States, service of enlisted 

men on active list of Regular Army in (J. A. G.) 

Clothing allowance on muster inco Federal 8:ervice 

(J. A.G.) ..-. 

Condemned Army horses issued to, transportation 

charges, appropriation (Comp.) 

Conformity to Regular Army organization (J. A. G.).. . . 
Cost of transportation of subsistence purchased for, in 

connection with joint encampment (.T. A. G.) 

Duties of members of Medical Reserve Corps (J. A. G.) . . 
Eligibility for service, pensioner for phvsical disability 

(J. A.G.)... \ 

Extent of equipment with arms, etc. (J. A. G.) 

Instructors at joint camps composed of Regular troops 

and, detached service (J. A. G.)... 

Joint encampments, pay, transportation and subsistence 

(Comp.) 

Mounts for officers participating in joint maneuvers 

(J. A.G.).. 

Officers of Army detailed as instructors and inspectors, 

transportation (J. A. G.) 



Year. 


No. 


Page. 


1912 


20 


41 


1913 


35 


306 


1914 


14 


360 


1915 


1 


461 


1913 


27 


254 


1913 


27 


249 


1912 


12 


12 


1913 


18 


216 


1913 


31 


295 


19J3 


29 


217 


1913 


27 


259 


1913 


17 


195 


1912 


12 


16 


1915 


9 


473 


1913 


13 


180 


1917 


15 


669 


1917 


18 


680 


1914 


43 


421 


1915 


1 


459 


1916 


18 


570 


1916 


47 


629 


1914 


20 


367 


1912 


12 


12 


1912 


20 


41 


1912 


12 


13 


1912 


12 


22 


1912 


12 


13 


1912 


12 


23 


1914 


39 


410 


1917 


15 


662 


1915 


36 


522 


1913 


18 


217 


1914 


39 


411 


1914 


25 


381 


1914 


50 


443 


1913 


29 


276 


1914 


39 


408 


1913 


13 


184 


1912 


20 


42 


1912 


12 


13 



734 



INDEX, 



Bulletins. 



Militia — Continued . 

Organization ot machine-gun units (J. A. G.) 

Pay of ofiicer during encampment, rank above com- 
mission (J. A. G.) 

Proceeds from rental of ride range (J. A. G.) 

Property shortage of officers of Organized, on muster 

out (J. A. G.)-; - "- 

Purchases of military supplies (J. A. G.) 

Quarters for officers of, attending service schools (J. A. G . 

Radio stations for (J. A. G.) 

Relation to Army Reserve (J. A. G.) 

Repair of property issued to (J. A. G.) 

Reserves, attendance of, at encampments and pay for 

(J. A.G.) .....' 

Residence of members of District of Columbia Militia 

(J. A. G.) 

Retired sergeant may be paid for service in (J. A. G.) . 
Retirement of officers of District of Columbia Militia 

(J. A. G.) 

Rifle range, laborer on State, employee (J. A. G.) 

Service and pay of retired officers and enlisted men 

(Comp.) 

Status of Indians in relation to (J. A. G.) 

Transportation in connection with joint encampments, 

deductions under land-grant acts (Comp.) 

Transportation, land-grant roads, deductions (Ct. Cls.). 
Use of mihtary reservations (J. A. G. ) 

Use of, outside of United States/ S'^^^.^^^; 

Minnesota — 

Discrimination against Army uniform, etc., prohibited 
Minors — 

Appointment of guardian to consent to enlistment of 

(J. A.G.) 

Misconduct — 

Absence on account of. See Enlisted men; Officers, 

Army. 
Gratuity, deceased officers and soldiers, carelessness or 

accident not (J. A. G.) 

Gratuity, what constitutes, to prevent payment of, on 

death of soldier (J. A. G.) 

Mistakes — • 

Adjustment of, made on final payment to contractor 

(Comp.) 

Telegraph messages, night and lettergram rates (Comp.) 
Money — 

Exchange, officers serving abroad, pay, appropriation 

(Comp. ) , 

Loss in gold coin by abrasion during shipment (Comp.) 
Post exchange, responsibility for, where collected at 

pay table as due from enlisted men (J. A. G.) , 

Prisoner smuggling, confiscation illegal (J. A. G.) 

Moral Turpitude — 

Retention of soldiers guilty of, not favored (J. A. G.). . 
Motorcycles — 

Passenger-carrying vehicles (Comp.) 

for Signal Corps, whether passenger-carrying vehicles 

(J. A.G.) 

Motor Trucks — ■ 

Purchase of, requirements as to advertising (Comp.) 

MoToa Vehicles, CtOvernment — 
iSee Automobiles. 



Year. 


No. 


1912 


12 


1914 
1913 


43 
23 


1917 
1915 
1913 
1913 
1913 
1914 


15 
1 

23 
1 

8 
20 


1913 


13 


1913 
1913 


18 
18 


1914 
1915 


14 
30 


1913 
1914 


27 
20 


1914 
1914 
1913 
1912 
1912 


52 
25 
13 
12 
12 


1917 


18 


1914 


46 


1912 


12 


1912 


12 


1915 
1914 


9 
25 


1915 
1913 


30 
1 


1912 
1915 


12 
21 


1917 


18 


1916 


39 


1914 


50 


1915 


14 



INDEX. 



735 



Bulletins. 



Mounted Competition — 

Expenses of officers and enlisted men, with their 

mounts, attending (J. A. G.) 

Mounted Officers — 

Sufficiency of mounts (J. A. G.) 

Mounts. See Horses. 
Munitions of War — 

What articles constitute (At. Gen.) 

Music — 

Army band, use of, during sessions of International 

Congress of Hygiene and Demography (J. A. G.) 

Muster Out — 

Enlisted men of National Guard in private hospitals at 

time of (Comp.) 

National Guard officer in Texas, legality of (J. A. G.).. 
National Cemeteries. See Cemeteries. 
National Defense Act — 
See Specific matter. 
Construction of certain provisions — 

Details in Staff Departments (J. A. G.) 

Dental Corps as to reorganization of, under. See 
Dental surgeons. 

Examination of field officers (J. A. G.) 

Findings of board as to medals of honor (J. A. G.) . 

Increments, application of section 24 (J. A. G.) 

Limits of age for enlistment (sec. 27) (J. A. G.) 

National Guard organization, general exceptions 

(J.A.G.). _ 

Order of filling vacancies, grade of second lieuten- 
ant (sec. 24)_(J. A. G.) 

Personal examination of officers transferred (J. A. G.) 
Porto Rico Regiment of Infantry (sec. 21) (J. A. G.) 
Regimental adjutants, service with troops, detached 

service law, when operative (J. A. G.) 

Section 111, interpretation of (J. A. G.) 

Transfer of officers (sec. 25) (J. A. G.) 

National Emergency — 

Status of employees of Lighthouse Service transferred 

to War Department in time of (J. A. G.) 

National Guard — 
See Militia. 

Adjutant general. State, Territory, or District of Colum- 
bia, status of (J. A. G.) 

Age qualification for enlistment (J. A. G.) 

Authority of governor to accept officer's resignation 

(J.A.G.) 

Availability for general war purposes (J. A. G.) 

Aviation service, increase pay for (J. A. G.) 

Called into United States service, absence of Govern- 
ment employees in (Comp.) , 

Calling forth to guard ammunition plants (J. A. G.) . . . 

Calling forth to guard railroads (J. A. G.) 

Chaplains, grade and pay (J. A. G.) 

Clothing allowance on muster into Federal service 

(J.A.G.) 

Clothing issued to, title (J. A. G.) 

Detail of noncommissioned officers, service with (J. A. 

G.) 

Discharges, account of dependent families (J. A. G.)... 

Draft of part of, to meet sudden emergency (J. A. G.).. 

Effect of discharge of members by United States (J. A. 

G.) 



Year. 


No. 


1914 


50 


1013 


29 


1913 


29 


1912 


20 


1917 
1917 


18 
15 


1916 


18 


1916 
1917 
1916 
1916 


18 
15 

18 
18 


1917 


15 


1916 
1917 
1916 


18 
18 
18 


1916 
1916 
1916 


18 
18 
18 


1917 


18 


1916 
1916 


18 
47 


1916 
1916 
1916 


34 
18 
34- 


1916 
1917 
1917 
1916 


18 
18 
18 
57 


1917 
1917 


15 
3 


1916 
1916 
1916 


28 
18 
18 


1916 


34 



Page. 



736 



INDEX. 



Bulletins. 




National Guard — Continued. 

Enlisted men. See Enlisted men, National Guard. 
Enlisted men, discharge, term of enlistment (J. A. G.). . 
Enlisted men, in private liospital at time of muster out 

(Comp. ) 

Enlistment in, minors under 18, not eligible (J. A. G.). 
Enlistment under State law, status while in Federal 

service (J. A. G.) 

Exemption from service in, waiver (J. A. G.) 

Federal oath, effect of taking (J. A. G.) 

Gratuity laws applicable to, while in United States 

service (Comp.) 

Inspectors of small-arms practice, not authorized (J. 

A. G.) 

Legality of muster out of headquarters officer (J. A. G.). 
Method of bringing into service of United States (J. 

A.G.) 

Officers. See Ofiicers, National Guard. 

Officers or employees of Government, members of, leaves 

of absence to engage in field or coast-defense training 

(J. A.G.) . 

Organization, exceptions authorized by Secretary of 

War (J. A.G.) 

Organization, general exceptions (J. A. G.) 

Organizations below minimum strength, pay (J. A. G.). 
Pay of men rejected by State authorities before muster- 
in (Comp.) 

Payment of, for State duty under call of governor (J. 

A.G.) 

Property shortage of officers on muster out (J. A. G.). . .. 
Recriuts, payment of, between enlistment and date of 

muster-in or rejection (Comp.) 

Regular officer holding commission in employment as 

posse comitatus (J. A. G.) 

Reserve ofiicers. /See National Guard Reserve officers. 
Retired enlisted men, pay status on enlistment in 

(Comp.) 

Retired officer commissioned in, status (J. A. G.) 

Second lieutenants, appointments, antedating rank 

(J. A.G.) 

Section 111, national defense act, interpretation of 

(J. A.G.).. 

State authorities, power over, after call for Federal 

service (J. A. 6.) 

Statedutyunder call of governor, payment for (J. A. G.). 
Status of members, under call for Federal service, 1916 

(J. A. G.) 

Telegraph service at Government rates (J. A. G.) 

Travel expenses of enlisted men in responding to call 

(J. A.G.) 

Uniform clothing, title to (J. A. G.) 

National Guaro Organization — 

General exceptions, national defense act (J. A. G.) 

National Guard Preserve — 

Furlough of enlisted men to (J. A. G.) 

Furlough of enlisted men to, restoration to active list 

(J. A.G.) 

Passing to, of enlisted men while in Fed erar service 

(J. A.G.) 

Restoration of reservist to active duty (J. A. G.) 

National Guard Reserve Officers — 

Appointment in Regular Army (J. A. G.) 



1917 

1917 
1916 

1916 
1916 
1916 

1916 

1916 
1917 

1916 



1916 



1917 
1917 
1916 


9 
15 

57 


1917 


3 


1917 
1917 


18 
15 


1916 


47 


1917 


15 


1917 
1916 


15 

28 


1916 


18 


1916 


18 


1916 
1917 


47 
18 


1916 
1916 


28 
28 


1917 
1917 


18 
9 


1917 


15 


1916 


47 


1916 


3 


1916 
1916 


28 
47 



1917 



28 



15 



INDEX, 



737 



Bulletins. 




No. Page. 



National Guard Service — 

Examination of enlisted men for commission, credit for 

(J. A.G.) 

National Home for Disabled Volunteer Soldiers — 

Jurisdiction, action against, in State court (St. Ct.) 

Naturalization — 

Alien enlisted men furloughed to reserve, not honorable 

discharge (sec. 21(j6, Rev. Stat.) (Fed. Ct.) , 

Navigable Waters — 

See also Rivers and harbors. 

Construction of term "Appurtenances" (J. A. G.) 

Improvement of, liability of Government for incidental 

damage to viharf (J. A. G.) 

Obstructions in stream with navigable and unnavigable 

reaches in different States (J. A. G.) 

Overflow due to public improvements (J. A. G.) 

Permission of President to land foreign cable in (J. A. G.) 
Right of United States to use river bed, riparian owners 

(J. A. G.) 

Rights of fishing and navigation, fishing nets an obstruc- 
tion (J. A. G.) 

Riparian rights, paramount authority of United States 

(Fed . Ct . ) 

Unlawful structures over (J. A. G.) 

Use of lands underneath (J. A. G.). .•. 

Navy— 

See also Marine Corps. 

Counting commissioned service in, to determine rank of 

Army officers appointed on same date (J. A. G.) 

Deserters, reward for apprehending, while serving in 

(J. A.G.) 

Pa^ymasters' clerks, officers within meaning of mileage 

law (Ct. Cls.) 

Negligence — 

Loss of enlisted men's pay entrusted to officer (J. A.G.).. 
Negotiable Instruments — 

Payment of stolen check (J. A. G.) 

Neutrality — ■ 

Admission of sick and wounded belligerents to Army 

hospitals (J. A. G.) 

• Arms and ammunition, importation of (At. Gen.) 

Arrest of alien by military authorities (Fed . Ct.) 

Exportation of munitions of war (Fed. Ct.) 

"Military expedition or enterprise," v/hat constitutes, 

conspiracy (Fed. Ct.) 

Provisions and clothing for troops, whether arms and 

munitions of war ( At. Gen.) 

What are arms and munitions of war (At. Gen.) 

New Hampshire — 

Discrimination against Army uniform, etc., prohibited. 
Newspapers — 

Authority to purchase for troops (J. A. G.) 

Rates for advertising in (J. A. G.) 

New York — 

Discrimination against Army uniform, etc., prohibited. 
Noncommissioned Officers — 
See also Enlisted men. 

Desertion, effect on position (J. A. G.) 

Detail for duty with National Guard, number author- 
ized (J. A. G.) 

Detail of, for service with National Guard (J. A. G.) 

Heat and light, quarters outside post (J. A. G.) 

Power of court-martial to reduce to lower grade (J. A. G. ) . 

93668°— 17 47 



1917 
1913 

191G 

1912 

1915 

1914 
1914 
1914 

1915 

1914 

1914 
1913 
1914 

1914 
1912 
1914 
1915 
1913 



1914 
1912 
1913 
1913 

191(5 

1913 
1913 

1917 

1914 
1914 

1917 



1915 

1917 
1910 
1915 
1916 



18 
31 

28 

12 

14 

33 
14 
39 

3() 

33 

46 

27 
14 

39 
20 

8 
18 

1 



43 
12 
17 
17 

34 

29 
29 

18 

14 
20 

18 



21 

3 
28 
21 
13 



738 



INDEX. 



Bulletins. 




Noncommissioned Officers — Continued . 

Rank of sergeants, first class, Medical Department (J. 
AG.) .- 

Reduction in rank on charge of desertion (J. A. G.). . . 

on Temporary duty in field, not entitled to fuel allow- 
ance at permanent station ( J. A. G.) 

Notes — 

on A dmin istration of military justice (J. A. G.) 

Notes on Military Justice — 

Charges, certainty in alleging place of crime (J. A. G.). 

Clemency, recommendation to (J. A. G.) 

Delay, carelessness of court or judge advocate (J. A; G.) 

Depositions, essential facts to be covered (J. A. G.) 

Desertion, no defense, soldier intented to go, and did 
go, to another post (J. A. G.) 

Findings, improper, lack of care of members of court 
(J. A. G.) 

Findings, improper, resulting in unnecessary delays 
(J. A. G.) 

Findings, improper, trials for desertion, absence with- 
out leave (J. A. G.) 

Findings, making such amendments, specification fails 
to state offense (J. A. G.) 

Hearsay evidence not admissible because made by offi- 
cer in course of investigation (J. A. G.) 

Insanity, issue should be determined when raised in 
trial (J. A. G.) 

Judge advocate, failure in duties, miscarriage of justice 
(J. A. G.) 

Judge advocate, failure in duty, record encumbered by 
irrelevant testimony (J. A. G.) 

Judge advocate, failure in duty to produce evidence 
(J. A. G.) 

Objection to member can be made at any time during 
proceedings (J. A. G.) 

Plea of guilty, erroneous information by court respect- 
ing punishment (J. A. G.) 

Plea of guilty, taking evidence not precluded, degree 
of punishment (J. A. G.) 

Pleas, duty of president of court-martial respecting 
(J. A. G.) 

Record of trial, errors in, lack of care (J. A. G.) 

Record of trial, errors in, reconvening court (J. A. G.). 

Record of trial, incomplete, correction (J. A. G.) 

Record of trial, unnecessary return of (J. A. G.) 

Sentence, dishonorable discharge, suspension of, when 
proper (J. A. G.) 

Sentence, extended periods of confinement, failure to 
include hard labor (J. A. G.) 

Sentence, failure to follow prescribed forms (J. A. G.) . 

Sentence, inadequate, officer, mistreating men (J. A. G.) 

Sentence, relation to finding and evidence (J. A. G.). . 

Sentences, retention of soldiers guilty of moral turpi- 
tude not favored (J. A. G.) 

Specifications, necessity for precision in drawing 
(J. A. G.).... 

Witnesses, testimony of wife against husband, personal 

abuse (J. A. G.) , 

Notice — 

Sufficiency of, to contractor relative to delivery of ar- 
ticles ( J. A . G. ) , 

Nurses, Army— 

Allowances while on leave (J. A. G.) 

Cumulative leave (J. A. G.) , 



1917 
1915 

1915 

1914 

1915 
1916 
1915 
1915 

1915 

1915 

1915 

1915 

1915 

1917 

1915 

1915 

1915 

1915 

1917 

1915 

1915 

1916 
1915 
1915 
1915 
1915 

1915 

1915 
1915 
1915 
1915 

1917 

1915 

1915 

1912 

1913 
1913 



No. 



15 
21 



36 
1 

39 
39 

36 

36 

36 

36 

39 

18 

36 

36 

36 

36 

18 

36 

36 

1 

36 
36 
36 
39 

36 

39 
39 
36 
39 

18 

39 

39 

12 

1 
1 



INDEX. 



739 



Bulletins. 




No. Page. 



Nurses, Army — Continued. 

Dying in service, disposition of remains (J. A. G. ) . . . . 

Longevity pay (J. A. G. ) 

Payment of additional (J. A. G.) 

Settlement for unused portion of ticket issued for trans- 
portation to home (J. A. G.) 

When appointments take effect (Comp.) 

Nurse Corps — 

Death gratuity statute not applicable to (Comp.) 

Oaths — 

Authority of postmasters to administer to officers' re- 
turns of contracts (J. A. G.) 

Chief clerks, executive departments, designate clerks 

to administer (J. A. G.) 

Federal, National Guard, effect of taking (J. A. G.). . . 
Military Academy, French citizen as teacher of French 

taking (J. A. G.) 

Observers. See Military observers. 
Office — 

Army officers, use of, in reorganizing Panama police 

force (J. A. G.).. _ _ 

Militia, acceptance of commission in, by Army officer 

on active list (At. Gen.) 

Militia, compatibility of Army officer on active list 

holding commission in (J. A. G.) 

Retired Army officer acting as superintendent of Indian 

schools (Comp.) 

Retired naval officer holding appointment under Civil 

iService Commission (At. Gen.) 

Retired officer receiving salary from Soldiers' Home 

(J-A.G.) 

Officers, Army — 

For a particular class of officers, see the specific title. 
Absence — 

See also Enlisted men, absence, 
on Account of misconduct, stoppage of pay (J.A.G.) 
from Active duty on account of confinement, for- 
feiture of pay (Comp.) 

Awaiting orders or on leave, status of (J. A. G.) 

Enlisted men and, due to misconduct, stoppage of 

pay (J.A.G.) 

Injured while on leave, medical treatment (J. A. G) 
on Leave, not entitled to forage allowances (Comp.) 
on Leave in Philippines, effect on tour of duty 

(J.A.G.) : 

with Leave, pay during, and during leave without 

pay (Ct, Cls. ) 

without Leave, pay during, and during leave with 

pay (Ct. Cls.) . . /. ■ 

without Leave, when regarded as in line of duty 

(J. A. G.) 

Status of, while on sick leave (J. A. G.) 

Absorption of certain number in consolidated Q. M. 

Corps, full opinion (J. A. G.) 

Acting detal surgeons are not (J. A. G.) 

on Active list, acceptance of office in militia (At. Gen.) 
on Active list, holding office in militia, compatibility 

(J.A.G.)... 

Admission of widow of, to Government Hospital for In- 
sane (J.A.G.) 

Allowances, issue of shelter tents to (J. A. G.) 

Appointment and lineal rank (J. A. G.) 

Appointment, commission issued in name of deceased 
(At Gen.) , 



1914 
1914 
1914 

1914 
1914 

1917 



1914 

1912 
1916 

1912 



1914 



50 

25 
25 

39 
20 

18 



52 

20 

47 

20 



1912 


20 


1912 


12 


1912 


12 


1912 


20 


1912 


20 


1914 


20 



33 



1914 
1914 


50 

46 


1914 
1913 
1913 


33 

4 
4 


1915 


36 


1914 


39 


1914 


39 


1913 
1913 


1 
29 


1912 
1915 
1912 


22 

5 

12 


1912 


12 


1912 
1917 
1913 


20 
15 

8 



1912 



12 



740 



INDEX. 



Bulletins. 



Officers, Army — Continued. 

Appointment of ci"/ilians as, age limitation (J. A. G.) 

Appointment .of , examination of enlisted men delayed 
by error of military authorities (J. A. G.) 

Appointment of, not citizens of United States (J. A.G.). 

Appointment on same date, counting commissioned 
service in Navy to determine rank (J. A. G.) 

Assistant veterinarian , credit for ' ' G overnment service ' ' 
(J. A. G.) 

Baggage. See Baggage. 

Change of station. See Change of station. 

Change of station, heat and light allowance to family 
(J. A. G.) 

Claim for private property destroyed by fire (Comp.) 

Commanding supply companies, whether on detached 
duty (J. A. G.) 

Construction of law as to detached service, full opinion 
(J. A. G.) 

Debts, advantage of bankruptcy law to escape payment 
of (J.A.G.) 

Deceased, commission, issued in name of (At. Gen.) . . . 

Dental Corps, retirement on failure to pass physical ex- 
amination (J. A. G.) 

Detached duty. See also Detached service. 

Detached service, full opinion as to law governing 
(J. A. G.) 

Detached service law, garrison duty (J.A.G.) 

Detached service, promotion while on staff duty (J.A.G.) 

Detached service, squadron adjutant (J. A. G.) 

Detached service, status when statute relating to, is in- 
operative (J. A. G.) 

Detailed as instructors, etc., of militia, transportation 
(J.A.G.) - 

Detailed to attend associations, expenses of (J. A. G.) . . . 

Detailed to civil duty (J. A. G.) 

Details. See also Details. 

Discharged, travel allowances (J. A. G.) 

Duty in command of guard, detached service (J. A. G.).. 

Eligibility for membership in Officers' Resen'e Corps 
(J. A. G.) 

Engaging in private business (J. A. G.) ; - 

Enlisted men and, absence of, due to misconduct, stop- 
page of jjay (J. A. G.) 

Enlisted men and, with their mounts, expenses of, 

■ while attending mounted competition (J. A. G.) 

Enlisted men's pay entrusted to, liability for loss 
(J. A. G.) - 

Examination for commission, enlisted men, credit for 
National Guard service (J. A. G.) 

Examination, personal, for transfer (J. A. G.) 

Examinations for promotion (J. A. G.) 

Examinations for promotion, general efficiency, how 
determined (J. A. G.) ._ - - - . 

Examinations of enUsted men for commissions, Marine 
Corps service (J. A. G.) 

Failure to pass mental examination for promotion, ex- 
emptions on reexamination (J. A. G.) 

Field. See Field officers. 

Field, examination for promotion. Sec. 24, national- 
defense act (J. A. G.) 

Foreign service, request for extension tour of duty 
(J.A.G.) 

Fuel. See Fuel. 



Year. 


No. 


1916 


57 


1916 
1916 


57 
28 


1914 


39 


1917 


15 


1918 
1917 


1 
15 


1917 


15 


1912 


22 


1914 
1912 


52 
12 


1917 


18 


1912 
1915 
1915 
1917 


22 

21 

1 

3 


1914 


33 


1912 
1912 
1914 


12 
20 
25 


1914 
1915 


20 

32 


1917 
1915 


9 
5 


1914 


33 


1914 


50 


1915 


IS 


1917 
1917 
1913 


18 

18 

4 


1916 


28 


1916 


57 


1915 


32 


1916 


18 


191G 


8 



INDEX. 



741 



Bulletins. 



Officers, Army— Continued. 

Furnishins; allowance of heat and light to family of, at 

place other than station (J. A. G.) 

Heat and light. See Heat and light. 

Hire of automobile from, unauthorized (J. A. G.) 

Holding commissions in National Guard employed as 

posse comitatus (J. A. G.) 

Horses. See Horses. 

on Leave, not entitled to a\dation pay (X^omp.) 

on Leave or waiting orders, etc., status of (J. A. G.). . . 
Machine-gun troop service, detached service law 

(J. A. G.) 

Medical attendance while on leave of absence ( J . A . G . ) . 

Mileage. See Mileage. 

Militia, acceptance of commission in, while on active 

list (At. Gen.) ._ _ 

Militia, holding commission in, v/hile on active list, 

compatibility of (J. A. G.) 

Newly appointed, course of instruction, detached 

service (J. A. G.) 

Office. See Office. 

Ordered to proceed to certain place for identification by 

ci\dlian mtness (J. A. G.) 

Panama police force, use of, in reorganizing (J. A. G.). 
Pay. See Pay of officers. 

Payment of salaries abroad, cost of exchange (Comp.). . 
Porto Rico Regiment, eligibility for detached service 

(J. A. G.) 

Promotion in Quartermaster Corps subject to examina- 
tion, full opinion (J. A. G.) 

Promotion in Quartermaster Corps, seniority rule (J. 

AG.) 

Promotion of, seniority (At. Gen.) 

Promotions, seniority rule, enforcement of injunction 

(D.C.App.) .^ 

Purchase of envelopes for sale to enlisted men and 

(Comp.) 

Quarters. See Quarters, Army. 

Recess appointments, effect of Senate's failure to con- 
firm (At. Gen.) 

Recommissioning ex-ofiicers as (J. A. G.) 

Recommissioning persons formerly in service, permitted 

to resign (J. A. G.) 

Relative rank (J. A. G.) 

Repairs to property belonging to enlisted men, and used 

by United States (J. A. G.) 

Resignation of, during Ci\dl War, desertion (J. A. G.). . 

Resignation, shipment of private mounts (J. A. G.) 

Resignation, -ftithdrawal of, before acceptance (J. A. G.) , 
Retired. See Pi-e tired officers. 

Retired, members of courts-martial (J. A. G.) 

Retirement, selection of home on (Comp.) , 

Second lieutenaut. Quartermaster Corps (pay clerk), not 

eligible for transfer to Infantry (J. A. G.) 

Second lieutenants, order of filling vacancies in grade of 

(sec. 24, national defense act) (J. A. G.) 

Selection of home on retirement (Comp.) 

Service as captain of Infantry rifle team, not duty with 

troops (J. A. G.) 

Serving as regimental adjutant, detached service 

(J. A. G.) 

Status of, when statute relating to detached service is 

inoperative (J. A. G.) 



Year. 


No. 


1914 


50 


1915 


36 


1917 


15 


1915 
1914 


36 

46 


1915 
1916 


39 

8 


1912 


12 


1912 


12 


1915 


21 


1914 
1912 


50 
20 


1915 


9 


1917 


18 


1912 


22 


1916 
1913 


28 

27 


1915 


18 


1914 


33 


1913 
1917 


1 
15 


1916 
1916 


18 
57 


1914 
1915 
1915 
1913 


50 
9 

39 
4 


1917 
1912 


15 
12 


1917 


3 


1916 
1912 


18 
12 


1915 


26 


1916 


18 


1914 


33 



Page. 



742 



INDEX. 



Bulletins. 




No. i Page. 



G.).... 



Officers, Army — Continued. 

Status while on leave or awaiting orders (J. A 
Temporary duty. See Temporary duty. 

Transfer from line to Engineer Corps (J. A. G.) 

Transfer of, place in lineal list (sec. 25, national defense 

act) (J. A. G.) 

Transfer, personal examination (J. A. G.) 

Transportation. See Transportation. 

Travel allowances. See Travel allowances. 

Traveling expenses. See Traveling expenses. 

Use of, in reorganizing Panama police force (J. A. G.). , 

Veterinarians, scope of examination for appointment 

(J. A. G.) 

Veterinarians, whether included in Veterinary Corps 

(J. A. G.) 

Officer of the day — 

Detail of staff officer as, command (J. A. G.) 

Officers, National Guard — 

Age limitations (J. A. G.) 

Authority of governor to accept resignation (J. A. G.). . . 

Authorized mounts, transportation of (J. A. G.) 

Aviation ser\'ice, increase pay for (J. A. G.) 

Commission expiring while in Federal service (J. A. G.). 

Detail of, to duty with Regular Army (J. A. G.) 

Discharge of, for physical disability (J. A. G.) 

Eligibility for membership in Ofiicers' Reserve Corps 

(J. A. G.) 

Federal oath, effect of taking (J. A. G.) 

Holding elective State office (J. A. G.) 

Leaves of absence, entitled to (Comp.) 

Legality of muster out in Texas (J. A. G.) 

Original appointments by governor to advanced grades 

(J. A. G.) , 

Pay and allowances for, in United States service (Comp.). 

Property shortage on muster out (J. A. G.) 

Retention in Federal service after muster out of organi- 
zation (J. A. G.) 

Shortage of property on muster out (J. A. G.) 

Transportation of private mounts on muster out (J. A. G.). 
Officers' Reserve Corps — 

Assignment of members as disbursing officers (J. A. G.). . 

Aviation pay for officers of (J. A. G.) 

Eligibility for membership in, officers and enlisted men 

of Regular Army and National Guard (J. A. G.) 

Examining boards, appointment of members on (J. A. G.) 
Members not eligible for details for college duty (J. A. G.) 
Number of officers authorized in various grades (J. A. G.). 
Organizational questions--- 

Aviation Section i 

Dental Corps i 

Medical Department [ - y . p ,. 

Quartermaster Corps ( ^ -' 

Signal Corps 

Veterinarian ( 'orps I 

Philippine Scouts, eligibility for appointment in 

Purchase of ordnance by members (J. A. G.) 

Purchase of subsistence stores by member of on inactive 

list (J. A . G . ) \ 

Official Records— 

Copies for use in court (J. A . G. ) 

Copiesof, to suj)port(laiinsagainst Government (J. A. G.) 
Old records, how disposed of (J. A. G.) 



1914 


46 


1917 


18 


1916 


18 


1917 


18 


1912 


20 


191C 


28 


1917 


15 


1915 


32 


1916 


39 


1916 


34 


1916 


57 


1916 


34 


1917 


3 


1916 


28 


1916 


28 


1917 


9 


1916 


47 


1916 


39 


1917 


3 


1917 


15 


1916 


34 


1916 


34 


1917 


15 


1916 


47 


1917 


15 


1916 


47 


1917 


3 


1917 


18 


1917 


9 


1916 


57 


1916 


39 


1916 


28 



1916 



1917 
1917 

1917 

1913 
1917 
1913 



34 



23 

9 

18 



INDEX. 



743 



Bulletins. 


Year. 


No. 


Page. 


Official Records — Continued. 








Procedure for disposition of (J. A. G.) 


1916 


8 


548 


Production of confidential, in obedience to subpoenas 








(J. A. G.) 


1913 


8 


160 


Returns Office, attaching confidential plans to con- 




tracts for file in (At. Gen.) 


1912 


12 


21 


Oklahoma — 








Discrimination against Army uniform, etc., prohibited. 


1917 


18 


686 


Open Market — • 








See also Bids; Contracts. 








Order for supplies in excess of needs during life of con- 








tract (Comp.) 


1915 


y 


476 


Purchase of supplies in, without advertising (Comp.).. 


1914 


43 


424 


Orders — 








Change of, to allow commutation of quarters (Comp.). . . 


1914 


25 


386 


Executed, not revocable (J. A. G.) 


1915 


14 


479 


Ordnance — 








Purchase of, by officers, Medical Reserve Corps, not in 








active duty (J. A. G.) 


1917 


3 


643 


Ordnance Department — 








Details to, how made (J. A. G.) 


/1913 
11913 


1 

4 


116 

144 


Stores, purchase of, by pay clerks (J. A. G.) 


1913 


1 


124 


Organized Militia. See Militia. 








Osteopathy — • 








Not medical treatment, expense for, not authorized 








(J. A.G.) 


1915 


26 


505 


Overpayments — 








Officers responsible for erroneous entry of soldier's en- 








listment (J. A. G.) 


1913 


4 


149 


Overtime— 








Claim for pay for (J. A. G.) 


1917 


18 


674 


Overtime Work — 








Compensation for (J. A. G.) 


1914 


25 


380 


Packmasters— 








Mountain Artillery, rates of pay (J. A. G.) 


1916 


28 


593 


Panama Canal — ■ 








Officers detailed to, baggage transportation (J. A. G.). . . 


1914 


25 


376 


Panama-Pacific International Exposition — 








Expenses of officers and enlisted men, with their mounts. 








attending mounted competition at (J. A. G . ) 


1914 


50 


441 


Use of Army transports in transporting Chinese exhibits 








to (J. A. G.) 


1914 


39 


414 


Panama Police Force — 








Use of Army officers in reorganization of ( J. A. G.) 


1912 


20 


20 


Parcel Post — 








Insmance of Government packages IS-r' . ' A' I 


1913 
1915 
1913 


17 

18 

8 


197 
489 


Limitation on use of Government fi'ank (J. A. G.) 


164 


Pardon — 








Power to grant conditional, and its effect (St. Ct.) 


1914 


20 


374 


to Qualify witness (Fed. Ct.) 


1914 


25 


390 


(Note. — Reversed by U. S. Supreme Court.) 
Restorationof civil rights forfeitecl by desertion (J. A. G.) 








1913 


23 


230 


Restoration of lost files after promotion (J. A. G.) 


1914 


1 


326 


When effective (Fed. Ct.) 


1915 


14 


486 


Partnership — 








Contract payments, how made after dissolution of (J. A.G.) 


1913 


23 


230 


Passenger-Carrying Vehicles. See Motorcycles; vehi- 
cles. 
Patent Rights — 














Repairs to patented engine (J. A. G.) 


1914 


8 


349 



744 



INDEX. 



Bulletins. 



Patents — 

of Employees, right of Government to use (J. A. G.) 

Indemnify contractors against infringement of (J. A. G.) 
Use of patented inventions by United States (Fed. Ct. ) . 
Pay— 

Ci\-ilian employees wMle training in Enlisted Reserve 

Corps ( J. A. G.) 

of Clerks, etc. See Clerks and employees. 
Computation of, for services other than personal (Comp.) 
of Enlisted men. See Pay of enlisted men. 
of Enlisted men, National Guard. See Pay, enlisted 

men, National Guard, 
of Officers. See Pay of officers. 
Pay and Allowances — 

Accrued under prior enlistment, whether forfeited by 

desertion (J. A. G.) 

Army officer, fuelallowances, use of, by family (Comp.) 

Aviation mechanician on furlough (J. A. G.) 

Commutation of quarters on day of relief from duty 

(Comp.) 

Computation of serAdce of chaplains (J. A. G.) 

Continuous-ser\dce pay of enlisted men (J. A. G.) 

Contract surgeons (J. A. G.) 

Details to Philippine Constabulary (Comp.) 

Dishonorably discharged soldiers during suspension of 

sentence (Comp.) 

Extra-duty pay (Fed. Ct.) 

Extra-duty pay of soldier for service as telogra{)li 

operator (Ct. Cls.) , 

Forage allowance, mount under size (Comp.) 

Forage for extra mount (J. A. G.) 

Forage for horses not owned by officer (Comp.) 

Forage for officer on leave of absence (J. A. G.) 

Foreign service, on certain items not authorized (Comp.) 

Foreign-service pay (Fed, Ct. ) .^. . . 

Foreign-service pay, trips into Mexico (Comp.) 

Foreign-service pay, when authorized (Comp.) , 

Foreign service, troops in Canal Zone crossing into 

Republic of Panama (Comp.) 

Increase for aviation duty (J. A. G.) 

Increase for aviation service (Comp.) 

Liability of soldiers deposit, indebtedness to United 

States and post exchange (Comp.) 

for Mounts while on leave of absence with half pay 

(Comp.) 

National Guard, in service of United States, rulings 

(Comp.) 

Officer in arrest and confinement, deduction of pay 

(J. A. G.) '.. 

Officer in employ of foreign government (Comp.) 

Officers of Medical Reserve Corps (J. A. G.) 

Officers on special mission abroad (Comp.) 

Persons drawing two salaries, retii'ed enlisted men 

(Comp.) 

Receiving salaries from two positions (Comp.) 

Reduction in numbers of grades not reduction in pay, 

etc. (Comp.) 

Reservists, continuation of gunner's pay on call to 

colors (J. A. G.) 

Reservists responding to call, excused because of de- 
pendent families (J. A. G.) 

Retired officers and enlisted men for service in militia 

(Comp.) 

Retired officers, assigned to active duty (J. A. G.) 



Year. 


No. 


1913 


1 


1912 


12 


1912 


12 


1917 


18 


1916 


28 


1914 


50 


1912 


12 


1916 


18 


1913 


17 


1913 


35 


1916 


8 


1913 


38 


1913 


23 


1914 


52 


1916 


8 


1914 


1 


1914 


5 


1913 


13 


1913 


13 


1913 


23 


1915 


21 


1914 


25 


1916 


18 


1913 


38 


1916 


34 


1913 


18 


1913 


17 


1916 


13 


1916 


1 


1916 


34 


1916 


13 


1913 


18 


1913 


38 


1913 


31 


1916 


18 


1917 


9 


1916 


28 


1916 


47 


1916 


47 


1913 


27 


1916 


28 



Page. 



INDEX. 



745 



Bulletins. 




Page. 



Pay and Allowances — Continued. 

Ptetired officers on active duty, forage (J. A. G.) 

Soldier absent due to misconduct (Comp.) 

Pay Check — 

Stolen, effect of indorsement (J. A. G.) 

Pay Clerks — 

Assignment of retired, to active duty (J. A. G.) 

Change of status under national defense act (J. A. G.). 

Commissioned second lieutenant in Quartermaster 
Corps, not eligible for transfer to Infantry (J. A. Gr.) 

Commutation of quarters at post (J. A. G.) 

Foreign service, tour of duty (J. A. G.) 

Heat and light, com-mutation of (J. A. G.) 

Heat and light for (J. A. G.) 

at Military Academy, leave of absence (J. A. G.) 

Official status in Army (J. A. G.) 

Pul)lic quarters for (J. A. G.) 

Reimbursement for hire of quarters where not fur 
nished in kind (Comp.) 

Retu'ement of (J. A. G.) 

Service with troops (J. A. G.) 

Pay, Continuous-Service. See Continuous-service pay 
Payments — 

For days of February, computation of (Comp.) 

For 31st of month (Comp.) 

National Guard, for State duty under call of governor 

(J. A. G.) 

Pay of Enlisted Men — 

See also Enlisted men. 

Allotment of, by retired enlisted men (Comp.) 

Allotment of, when forfeited (Comp.) 

Coast Artillery band (J. A. G. ) 

Continuous-ser\dce, discharged to accept commission in 
National Guard (J. A. G.) 

Continuous-service, discharged to accept commission in 
Officers' Reserve Corps (Comp.) 



Continuous-service pay (J. A. G.) 

Continuous-service pay, antedating enlistment (J. A. G.) 

Continuous-service pay, application for reenlistment 
made within time limit but completed after (Comp.). 

Continuous-sen-ice pay, purchase of discharge (Comp.). 

Continuous-service pay, reenlistment after l/nQj^^r,-) 
completed enlistment and subse(iuent dis- i ) j a ^ ] ' 
honorable discharge J^ ' ' '^' 

Continuous-service pay, service as civilian in Quarter- 
master Corps not coimted (J. A. G.) 

Convicted of desertion, sentence disapproved, stoppage 
to pay reward and transi^ortation (J. A. G.) 

Deduction for absence. See Enlisted men; Absence. 

Deduction, Army reservist called to colors, absence in 
hospital (J. A. G. ) 

Deduction of, for absence in prior enlistment (J. A. G.). 

Detention of, in lieu of forfeitm'e (J. A. G.) 

Extra-duty (Fed. Ct.) 

Extra-duty not forfeited by sentence (Comp.) 

Foreign service, on certain items not authorized (Comp.) . 

Foreign service, troops in Canal Zone crossing into Re- 
public of Panama (Comp.) 

Forfeited by sentence of court-martial, when com- 
mences to rim (Comp.) 

Forfeiture of, comt-martial, effect on certain items 
(Comp. ) 

Future, forfeiture of, change of rank (Comp.) 



1915 
1913 

1913 

1912 
1916 

1917 
1913 
1915 
1915 
1915 
1913 
1913 
1913 

1914 
1913 
1914 



1914 
1914 

1917 



1914 
1917 
1916 

1916 

1916 
1913 
1916 
1915 

1914 
1912 

1914 
1914 

1913 
1915 



1916 
1915 
1915 
1916 
1915 
1915 

1916 
/ 1914 
\ 1915 

1915 
1915 



26 
29 



20 
18 

3 

1 

21 

21 

5 

17 

1 

4 

43 

1 

14 



20 

23 

18 



43 

3 

39 

28 

47 
35 



33 
12 

33 
39 

1 
30 



34 
18 
21 
8 
18 
21 

34 

33 

9 

36 
18 



746 



INDEX. 



Bulletins. 



Pay of Enlisted Men — Continued. 

Loss of, entrusted to officer (J. A. G.) 

Mess sergeants, national defense act (Oomp.) 

in Military confinement, subject to jurisdiction of civil 

authorities (J. A. G.) 

Privates, Medical Department (J. A. G.) 

Pri Abates, Medical Department, under national defense 

act (Comp.) 

Rates of. Mountain Artillery (J. A. G.) 

Reimbursement of amount stopped to pay reward for 

apprehension (J. A. G.) 

Reenlistment pay, computation of (Comp.) 

Retired, upon enlistment in National Guard (Comp.).. . 

for Service as telegraph operator (Ct. Cls.) 

for Service at Military Academy (Comp.) _ 

Stoppage during absence to test nature of disease 

(J. A. G.) 

Stoppage for reward, desertion (J. A. G.) _ 

Stoppage, legality of sentence authorizing, to satisfy 

indebtedness to post exchange (Comp.) 

Travel pay, deduction of indebtedness due United 

States from (Comp.) 

Pay op Enlisted Men, National Guard — 
See also Pay of enlisted men. 

Additional for qualification as gunners | /(^Qj^p \ 

Rejected by State authorities before muster-in (Comp.). 
Pay of Officers — 

See also Officers, Army. 

on A-viation duty, leave of absence (Comp.) 

Aviation pay for Officers' Reserve Corps (J. A. G.) 

Dedxiction of, on arrest and confinement (J. A. G.). . . . 

During absence without leave, and leave without pay 
(Ct. Cls.) 

During leave of absence, in excess of statutory allow- 
ance (Fed. Ct.) _ _. . . - 

Foreign serAdce, officers serving on, by special authoriza- 
tion of Congress (J. A. G.) 

Foreign service, on certain items notauthorized (Comp.) 

Foreign service, temporary and permanent legislation 
(Fed. Ct.) 

Foreign service, trips into Mexico (Comp.)_. 

Foreign service, troops in Canal Zone crossing into Re- 
public of Panama (Comp.) 

Forfeiture because of absence from active duty on ac- 
count of confinement (Comp.) 

Longe\dty, computation of time, Medical Reserve Offi- 
cers (J. A. G.) 

Organized Militia while attending encampment, rank 
above commission ( J . A . G . ) 

Serving abroad by special authorization of Congress 
(J. A. G.) 

Ser\ing abroad, money exchange, appropriation (Comp.) 
Pay Rolls — 

Certification of, relation to muster rolls (J. A. G.) 

Penalty Envelopes. See Envelopes. 
Penitentiaries — 

Confinement of military prisoners in Canal Zone (J.A.G.) 
Pennsylvania — 

Discrimination against Army uniform, etc., prohibited. 
Pensions — 

for Physical disability, eligibility of persons in receipt 

of, for service in Militia (J. A. G.) 

Per Diem Expenses. See Traveling expenses. 




1915 
1916 

1917 
1916 

1916 
191G 

1915 
1912 
1917 
1914 
1912 

1917 
1915 
1913 
1914 

1912 



1916 
1916 
1917 



1915 
1917 
1916 

1914 

1916 

1912 
1915 

1914 
1916 

1916 

1914 

1915 

1914 

1912 
1915 

1913 

1912 
1917 

1914 



18 
18 

3 

57 

18 

28 

30 

12 

15 

1 

12 

15 

36 

8 

33 

12 



89 

28 
3 



36 
18 
13 

39 



12 
21 

25 

18 

34 

50 

36 

43 

12 
30 



20 
18 

50 



IJSTDEX. 



747 



Bulletins. 




Perfumeries and Cosmetics — 

Sales bv post exchanges, internal-revenue stamps 
(J. A. G.) - - - - - 

Periodicals. See subscriptions to periodicals. 
Personal Examination. See Examination. 
Personal Injuries. See Injuries. 
Personal Property — 

Acceptance by United States of donation of (J. A. G.). 

Claim for loss or damage, evidence required (Comp.). 
Philippine Constabulary — 

See also Pliilippine Scouts. 

Detail of officers to, detached service (J. A. G.) 

Details to, pay and allowancesj ) ^ ^T'^/^ \' 

Officers detailed to, status (Comp.) 

Philippine Islands — 

See also Philippine Constabulary; Philippine Scouts. 

Customs stamp tax, exemption of Government property 
from (At. Gen.) 

Tax on jute bags, Quartermaster's Depax'tment (Comp. ) 
Philippine Scouts — 

See also Philii^pine Constabulary. 

Appointment of officers, not citizens of United States 
(J. A.G.) 

Court-martial of officer, composition of court (Sup. Ct. 

P..I) ; .---- 

Eligibility for appointment m Officers' Reserve Corps 

(J. A.G.) 

Officers of, detached for other duty, pay (Comp.) 

Retirement of officers (J. A. G.) 

Service in, when counted for retirement (J. A. G.) 

Service with, detached service (J. A. G.) 

Physical Examination. See Examination. 
Piece Work — 

Computation of holiday pay for civilian employees 

(Comp.) ". 

Pleas— 

Duty of president of court-martial, respecting (J. A. G.). 
of Guilty, erroneous information by court respecting 

punishment (J. A. G.) 

of Guilty, taking evidence not precluded by, degree of 

punishment (J. A. G.) 

Pledge or Pawn — 
Corroboration in case of confession of receiving property 

in (Fed. Ct.) 

Plumbing— 

Public buildings, cost of, chargeable to what appropria- 
tion (Comp.) 

Pool Tables — • 

Company, whether constitute Government agencies 

(J. A.G.) 

Port Charges — • 

Vessels liable to (U. S. Sup. Ct.) 

Porto Rico — 

Public lands, harbor areas (J. A. G.) 

Porto Rico Regiment — 

Eligibility of officers for detached service (J. A. G.) 

Porto Rico Regiment of Infantry^ — 

Appointment of officers, not citizens of United States 

(J. A.G.) 

Examinations for advancement by promotion, sec. 21, 

national defense act (J. A. G.) 

Posse Comitatus — 

Regular officers in National Guard employed as (J. A. Ct.) 



1915 



1912 
1916 



1914 
1913 
1913 
1913 



1912 
1913 



1916 
1913 



Page. 



23 
27 
35 



28 
31 



1917 
1914 
1914 
1913 
1916 


9 

20 

1 
38 

47 


1917. 


15 


1916 


1 


1915 


36 


1915 


36 


1917 


18 


1912 


12 


1912 


20 


1917 


9 


1913 


31 


1917 


18 


1916 


28 


1916 


IS 


1917 


15 



748 



INDEX. 



Bulletins. 



Postage. See Envelopes; Mail matter. 
Post Exchanges — ■ 

See also Government agencies. 

Disputes between exchange a,nd creditors, settlement 
of (J. A. G.) ■ - : - : : 

Distribution of dividends. Corps of Engineers (J. A. G.). 

Funds, loss through negligence of exchange officer 
(J.A.G) 

Internal-revenue stamps, sales of perfumeries and cos- 
metics (J. A. G.) 

Internal revenue tax, sales of tobacco (J. A. G.) 

Lease of part of military reservations for benefit (J. A. G.) 

Legality of sentence of court-martial authorizing stop- 
page of pay to satisfy indebtedness to (Comp.) 

Military Academy, engineer detachment, distribution 
of profits (J. A. G.) 

Participation in profits on withdrawal of members from 
(J.A.G.) - 

Power to contract with Government for electric current 
(J.A.G.). 

Responsibility for money collected at pay table due 
from enlisted men to (J. A. G.) 

Retired officer not eligible for duty as exchange officer 
(J.A.G.) 

Shortage in accounts, responsibility for (J. A. G.) 

Post Laundries — ■ 

Use of penalty envelopes by (J. A. G.) 

Postmasters — 

Authority to administer oaths to officers' returns of con- 
tracts (J. A. G.) 

Power of Attorney- — ■ 

Contract payments made to holder of (J. A. G.) 

Presents — 

from Employees to their official superiors (J. A. G.) 

President op the United States — • 

Army retiring board, action on report of (J. A. G.) 

Authority to call out and send militia into foreign 
country (J. A. G.) _. 

Authority to send militia outside of United States (At. 
Gen.) 

Calling forth National Guard to protect ammunition 
plants (J. A. G.) 

Calling for the National Guard to protect railroads (J.A.G.) 
(J. A. G.) 

Permission from, to land foreign cable in navigable 
waters of United States (J. A. G.) 

Power over military resei-vations same as other public 

land (J. A. G.) 

Prisoners — • 

See also Garrison prisoners; General prisoners. 

Expenses of officer and guard in producing, in response 
to writ of habeas corpus (J. A. G.) 

Introducing money in prison room, confiscation illegal 
(J.A.G.) 

Jlilitary, confinement in Canal Zone Penitentiary 
(J.A.G.) 

Military prisoner held by civil authority, expense 
(J. A. G.) 

Pay under suspended sentence of dishonorable dis- 
charge (Comp.) 

Under suspended sentence of dishonorable discharge, 

designation of (J. A. G.) 

Private Business — 

Officers and noncommissioned officers engaging in 
1;: (J. A. G.) 



Year. 


No. 


1917 
1915 


9 

18 


1916 


18 


1915 
1915 
1913 


1 

1 

35 


1914 


33 


1912 


20 


1912 


20 


1913 


23 


1912 


12 


1913 
1915 


17 
9 


1912 


20 


1914 


52 


1914 


8 


1912 


12 


1912 


12 


1912 


12 


1912 


12 


1917 


18 


1917 


18 


1914 


39 


1912 


12 


1914 


52 


1915 


21 


1912 


20 


1913 


31 


1914 


52 


1914 


46 


1915 


5 



INDEX. 



749 



Bulletins. 



Private Hospitals. See Hospitals. 
Private Property — ■ 

Claim for damage by soldiers (J. A. G.) 

Claim for use of in public service (J. A. G.) 

Claim of officer for loss of horse (Comp.) 

Destruction of liquors by military force (St. Ct.) 

Disposition of ammunition taken under martial law 

(J. A.G.) 

Donations to the Gtwernment (J. A. G.) 

Loss due to Artillery practice, articles necessary for use 

in quarters (J. A. G.) 

Loss of ciA-ilian clothing by enlisted man (J. A. G.). . . 

Loss of clothing at post laundry (J. A. G.) 

Loss of, delay, in presenting claim (Comp.) 

Loss of, in fighting fire (J. A. G.) 

Loss of in military service (Ct. Cls.) 

Of Officers and enlisted men, use of, by Government 

(J.A.G.).. 

of Officer destroyed by fire, claim for (Comp.) 

Reimbursement of officer for loss of (Comp.) 

Responsibility for destruction of, during enforcement) 

of martial law (J. A. G.) 

Retired soldier who died in Army hospital, disposition 

of ( J . A . G . ) - 

Shipment or disposition of effects of insane soldier after 

discharge (J.A.G.) 

Tortious acts of soldiers, liability (J. A. G.) 

Valueless effects of deceased soldiers (J. A. G.) 

Proceeds of Sales. See Sales. 
Profits — 

Post exchange, participation in, on withdrawal of mem- 
bers from (J. A. G.) 

Promotions — 

Effect on lost files (J. A. G.) 

Enlisted men, grade of second lieutenant (J. A. G.). . . 

Examination of officers for (J. A. G.) 

Examination of officers for, general efficiency (J. A. G.) 
Medical Corps, service under prior appointment 

(J.A.G.) 

Officer of Quartermaster Corps subject to examination 

(J.A.G.) 

Officers, failure to pass mental examination, exemp- 
tions on reexamination (J. A. G.) 

Officers while on staff duty, detached service (J. A. G.) 

Quartermaster Corps, seniority rule (J. A. Ct.) 

Rule of seniority (At. Gen.) 

Seniority rule, injunction to compel (D. C. App.) 

Temporary, civilian employees, when prohibited 

(Comp.) 

Property — 

Private. See Private property. 
Public. See Public property. 
Real. See Land. 
Proposals and Acceptances — * 
See also Contracts. 

Fixing transportation rates, termination of (Comp.) 

Liability of contractors for failure to deliver supplies 

under agreement represented by (Comp.) 

Publication — 

of Compilation by Government clerk (J. A. G.) 

of Sentence of courts- martial. See Courts- martial. 
Publications — 

ExDenses of distribution by executive departments 

(J.A.G.) 



Year. 


No. 


1916 
1917 
1913 
1917 


47 

18 

8 

15 


1916 
1914 


18 
25 


1914 
1916 
1914 
1913 
1914 
1917 


43 
13 
20 
18 
1 
18 


1914 
1917 
1913 


50 
15 
35 


1914 


33 


1914 


46 


1914 
1914 
1913 


50 

20 

27 


1912 


20 


1914 
1916 
1913 
1916 


1 

13 

4 

28 


1912 


20 


1912 


22 


1915 
1915 
1916 
1913 
1915 


32 
1 
28 
27 
18 


1915 


32 


1915 


1 


1914 


52 


1913 


1 


1912 


20 



Pas:e. 



750 



INDEX. 



Bulletins. 




PuBLTc Buildings — 

Contracts, architerts employed under authority 

(J. A.G.) ■-. 

Heating and plumbing fixtures, appropriation (Comp.). 

Heating apparatus, appropriation (( 'omp. ) 

Leased by one department to another, cost of repairs, 

etc. (J. A. G.) 

Payment for telephone service in, when used as private 

residence (Comp.) 

Plumbing, cost charged to what appropriation (Comp.). 

Restrictions on cost of (J. A. G.) 

Public Documents — 

Expenses of public distribution (J. A. G.) 

Public Lands — 

Harbor areas, Porto Rico ( J. A. G. ) 

Leased by Secretary of War (J. A. G.) 

Power of President over militarv reservations same as 

other (J. A. G.) * 

Public Moneys — 

Receipts from sale of worn-out prison clothing, etc. 

(J. A. G.) 

Public Property — 

Accountability of officers for supplies (Fed. Ct.) 

Appropriation of, to private use (Fed. Ct.) 

Boundary of military reservation determined by 

Boundary Commission, res judicata (J. A. G.) 

Certificate as to destruction of (J. A. G.) 

Chartering Army transport to private parties (J. A. G.) . . 

Claim for caring for and returning lost (J. A. G.) 

Damage resulting from defective State bridge (J. A. G.) . 

Damage to, admiralty jurisdiction (Fed. Ct.) 

Damage to, on account of neglect (J. A. G.) 

Deduction on settlement with common carrier on 

account of prior shipment (Comp. ) 

Disposition of horse injured by common carrier during 

shipment (J. A. G.) 

Disposition of unserviceable property (J. A. G.) 

Donation of personal property to United States (J. A. G.). 

Employment of land-value expert (J. A. G. ) 

Exchange of, replacing automobile tires on failure to 

make guaranteed mileage (J. A. G.) 

Issued to militia, accountability (J. A . G.) 

Lease of, acceptance of highest bid (J. A. G.) 

License to take water from Government main (J. A. G.). 

Loan of, l^y Secretary of War (J. A. G. ) 

Loss by fire at Antietam battlefield, responsibility for 

(J. a:. G.) 

Loss by fire in railroad depot (J. A. G.) 

Loss of, at sea, liability of shipowner, Harter Act, 27 
Stat., 445 (J. A. G.) _. ^ 

Measures for protection of, in emergency (J. A. G.). . . . 

Memorandum receipt for, in Quartermaster Corps 
(J.A.G.) 

Militia, accounting for tent equipage loaned by gov- 
ernor for relief of flood sufferers (J. A. G.) 

Militia rifle ranges, rental of (J. A. G.) 

National Guard officers, shortage on muster out (J.A.G.) 

Organized Militia officers, shortage on muster out 

(J.A.G.) ;-- 

Repair of street in city leading to military reservation 

(J. A. G.) 

Reward for recovery of, lost (J. A. G.) . . .- 



1912 
1913 
1915 

1912 

1912 
1912 
1913 

1912 

1913 
1913 

1912 



1916 



20 

27 
14 

20 

20 

12 
23 

20 

31 
1 

12 



18 



1914 


5 


1917 


18 


1912 


12 


1913 


18 


1912 


20 


1914 


43 


1913 


4 


1917 


9 


1913 


8 


1914 


50 


1914 


39 


1913 


18 


1912 


12 


1913 


23 


1914 


52 


1914 


20 


1917 


15 


1913 


35 


1913 


35 


1913 


29 


1913 


29 


1913 


31 


1917 


9 


1913 


1 


1913 


I 


1912 


12 


1913 


23 


1917 


15 


1917 


15 


1913 


8 


1915 


14 



INDEX. 



751 



Bulletins. 



Public Property — Continued. 

Sale of burial outfits to officers' relatives (J. A. G.) 

Sale of medical equipment to Red Cross (J. A. G.) 

Sale of sewage from military reservations (J. A. G.) 

Sale of siibsistence stores (J. A . G. ) 

Sale of, to educational institutions, cost to students 

(J.A.G.) 

Sale of, to naval officers (J. A. G.) 

Sale of worn-out prison clothing, etc. (J. A. G.) 

Sale to attendants at training camps (J. A. G.) 

Shipping officer responsible for, lost (Comp.) 

Theft of blanket by one soldier from another, article of 

war violated (J. A. G.) 

Title to clothing furnished to soldiers (Tr. Ct. P. I.). . . 
Title to land donated where deed was not recorded 

(J. A. G.) 

Title to military reservations conveyed without cost to 

United States (J. A. G.) 

Transfer of, not needed for purpose purchased, appro- 
priation (J. A. G.) 

Transportation, immigrant rate, when applicable 

(Comp.) 

Use for private purposes (J. A. G.) 

Use of Government vehicles for hire (J. A. G.) 

When land title vests in United States (J. A. G.) 

Public Service — 

Claim for private property used in (J. A. G.) 

Public Works — 

Contracts, separate agreements imder sec. 3717, Re- 

\'ised Statutes (J. A. G.) 

Eight-hour law, construction of Government dredge 

(J.A.G.) 

Leasing of water power at (At. Gen.) 

Preference to American laborers in emplovment on 

(J A.G.) ' 

Secretary of War may grant temporary use (J. A. G.). . . 
Punishment — 

/See flZso Courts-martial; Discipline; Sentences. 
Additional, to sentence imposed by court-martial, con- 
duct regulations (J. A. G.) 

Courts-martial, combining separate offenses to make 

offense of grand larceny (J. A. G.) 

Discipline, reducing soldiers from first-class privates 

(J.A.G.) 

Enlisted men awaiting trial (J. A. G.) 

Remission of, reductionin files, promotion (J.A.G.) . . . . 

Restoration of lost files after promotion (J. A. G.) 

Purchase op Army Supplies — 

Contracts for, in absence of appropriations (Comp.) 

Purchase op Supplies — 

Exchange of typewriters, etc. (J. A. G.) 

Purchases — 

Abroad, material for fortifications (J. A. G.) 

of Discharge. See Discharge, 
of Envelopes. See Envelopes, 
of Supplies in general. See Supplies. 
Quarantine — ■ 

on Military reservations (J.A.G.) 

Quartermaster Corps — 

Absorption of certain number of officers in consolidated, 

full opinion (J. A. G. ) 

Accountability and responsibility for property (J. A. G.). 




1913 


27 


1912 


12 


1913 


17 


1914 


20 


1915 


14 


1913 


13 


1916 


18 


1916 


47 


1916 


8 


1912 


20 


1913 


23 


1912 


12 


1912 


12 


1915 


18 


1915 


32 


1916 


57 


1913 


27 


1913 


29 



1917 



1912 

1915 
1913 

1914 
1913 



1914 

1914 

1912 
1913 
1913 
1914 

1917 

1917 

1913 



1913 



1912 
1913 



18 



20 

21 
23 

39 
23 



46 

39 

12 

23 

13 

1 

18 

18 

35 



31 



22 
1 



752 



INDEX. 



Bulletins. 




Quartermaster Corps — Continued. 

Change in statutory requirements as to formal contracts 

under (J. A. G. ) 

Consolidation of certain departments into, full opinion 

on law authorizing (J. A. G.) 

Consolidation of several departments into (J. A. G.) 

Details of officers (J. A . G. ) 

Details of officers to, under act of Aug. 24, 1912 (3. A. G.). 

Enlisted men on extra duty in (J. A. G.) 

Enlisted men substituted for civilians, full opinion 

(J. A.G.) : 

Issue of fuel in kind to civilian employees of (J. A. G.) . . . 

Living expenses of civilian clerks on temporai-y duty 
(Ct. Cls.) ........... 

Officers, who may be detailed for service in (J. A. G.") 

Organization of, act of Aug. 24, 1912, date when effec- 
tive (J. A. G.) 

Organization of, act of Aug. 24, 1912, detail of officer 
(J. A. G.) 

Pay_ clerks commissioned as second lieutenants in, not 
eligible for transfer to Infantry (J. A. G.) 

Pay of civilian clerk during absence without authority 
(Comp. ) 

Promotions in (J. A. G. ) 

Promotions in, seniority rule (J. A. G. ) 

Promotions in subject to examination, full opinion 

(J. A. G.) : 

Quartermaster sergeants, filling vacancies in, full opin- 
ion (J. A. G.) 

" Quartermaster sergeants, how selected (J. A. G.) 

Recommissioning officers of constituted departments 

comprising (J. A . G. ) 

Repairs to lighthouse tender damaged by vessel of 

(Comp. ) " 

Ser^dce in, as civilian not counted as enlisted service 

for longe\dty or retirement (J. A. G. ) 

Vacancies in, how filled (J. A. G. ) 

Quartermaster General — • 

Change in statutory requirements as to formal contracts 

under ( J. A. G. ) , 

Quartermasters — ■ 

in Charge of posts temporarily vacated (J. A. G.) 

Qu.\rtermaster's Department — 

Absorption of certain officers in consolidated Quarter- 
master Corps, full opinion (J. A. G. ) 

Civilian teamsters to replace enlisted men (J. A. G. ) 

Traveling expenses of civilian employees (Comp. ) 

Quartermaster Sergeants — • 

Duties of ( J. A. G. ) 

How selected (.1. A. G. ) 

Pay and allowances (J. A. G. ) 



Quartermaster Corps filling vacancies (J. A. G.) 

Quartermaster Stores — 

Proceeds of sale of unsritable (Comp. ) 

Quartermaster Supplies — 

Sale of, to naval officers ( J. A. G. ) 

Supplied to Marines while serving vnth Army, reim- 
bursement (J. A. G.) 

Quarters, Army — 

See also I?arracks and quarters; Fuel; Heat and Light. 

Allowances to officers on temporary duty (Comp.) 

Articles necessary for use in, loss of private property due 
to Artillery practice (J. A. G.) , 



1915 



1912 
1913 
1913 
1912 
1913 


22 

"i 
1 

20 

4 


1912 
1914 


22 
43 


1914 
1913 


46 
1 


1912 


20 


1912 


20 


1917 


3 


1914 
1913 
1916 


46 
1 

28 


1912 


22 


1912 
1913 


22 
1 


1914 


33 


1914 


46 


1913 
1913 


1 
1 


1915 


9 


1914 


25 


1912 
1913 
1914 


22 
35 
14 


1913 
1913 
1913 
1912 
1913 


1 

1 

1 

22 

1 


1917 


15 


1913 


13 


1914 


43 


1914 


5 


1914 


43 



INDEX. 



753 



Bulletins. 




Quarters, Army — Continued. 

Certificate of, as to occupancy (J. A. G. ) 

Commutation — • 

Assignment of, insufficient for officer's family (Comp.) 

Change of orders to allow (Comp. ) 

on Day of relief from duty (Comp. ) 

Enlisted men on temporary duty (Comp. ) 

Enlisted men on temporary duty in field or on fm-- 

lough (Comp. ) 

not Entitled to, while occupying public quarters by 

courtesy (Comp. ) 

Leasing of, fictitious (Comp.) 

Militia officers attending service schools (J. A. G. ) . . 
Officer on detached duty accepting commission in 

National Guard (J. A. G. ) 

Officer assigned to station without duty (Comp.). . . 
Officer detailed with Pliilippine Constabulary 

(Comp. ) 

Officer occupying room in public building (Comp. ). 

Officer on sick leave (J. A. G.) 

Officer on temporary duty retaining permanent 

quarters (Comp. ) 

Officer on temporary duty, training camps (J. A. G. ) . 
Officer performing temporary duty on Army trans- 
port (Comp. ) 

Officer relieved from duty and retained at station 

(Comp.) 

Officer temporarily absent from permanent station 

(Comp. ) 

Officers and pay clerks at posts (J. A. G. ) 

Providing same in kind, officer assigned to tempo- 
rary duty (Comp.) 

Right to, while awaiting sailing of steamer (Comp.) , 
Wiien officer is furnished room in public building 

(Comp. ) _ 

While awaiting sailing of transport (Comp.) 

Duty at hospitals, service with troops (J. A. G.) 

Hire of rooms without authority (Comp. ) 

Leasing of, form of contract for offer and acceptance 

(Comp.) 

Officer- 
Certificate of, not conclusive (Comp.) 

in Command of disciplinary company (J. A. G. ) 

on Duty with troops (Comp. ) 

on Leave and relieved fr'om duty (Comp.) 

Temporarily in charge of recruiting station (J. A. G. ) . 

on Temporary duty (Comp. ) 

on Temporary duty occupying public (Comp. ) 

on Temporary duty occupying public, by courtesy 

(Comp. ) 

on Temporary duty while changing station (Comp.). 

as Temporary transport quartermaster (Comp.) 

Pay clerks. See Pay clerks. 

not Public, occupied by officers and enlisted men on 

temporary duty, heat and light (J. A. G. ) 

Reimbursement of officer occupjdng house containing 
more rooms than authorized allowance for heat and 

light (Comp. ) 

Rented at officer's expense, heat and light (J. A. G.). . . 
Shared by ci\alians, heat and light allowance (Comp.).. 

Veterinarians on temporary duty (Comp. ) 

Radio Stations^ 

for Militia (J. A. G.) 



1913 

1914 
1914 
1913 
1916 

1915 

1913 
1915 
1913 



27 

43 
25 
17 

47 

30 

13 
14 
23 



Page. 



1917 


9 


1913 


38 


1913 


35 


1917 


3 


1913 


29 


/ 1914 
1 1914 


1 


5 


1916 


18 


1912 


20 


1913 


29 


1912 


20 


1913 


1 


1913 


1 


1913 


18 


1913 


1 


1913 


23 


1913 


38 


1913 


23 


1914 


33 


1913 


29 


1915 


5 


1913 


23 


1913 


35 


1913 


4 


1913 


31 


1913 


23 


1913 


13 


1913 


31 


1913 


8 


1914 


39 


1914 


46 


1915 


30 


1914 


25 


1913 


8 


1913 


1 



255 

423 
386 
203 
631 

512 

186 

483 
228 

648 
322 

310 
616 
267 
329 
340 
570 

50 

282 

48 
108 

'133 

223 

133 
240 
315 
240 

403 

280 
467 
234 
310 
149 
300 
241 

186 
300 

168 



411 



434 
509 
385 
169 

122 



93668°— 17- 



-48 



754 



INDEX. 



Bulletins. 



Railroads — 

Calling forth National Guard to protect (J. A. G.) 

Land-grant. See Land-grant railroads. 
Railroad Tickets — 

Furnished in variance with transportation request, Gov- 
ernment's liability (Comp. ) 

Furnished on transportation request, lo.ss of, liability 
(Comp. ) _ 

Redemption of unused portion issued on Government 
transportation request (J. A. G.) 

Settlement for unused portion furnished Army nurse 

for transportation to her home (J. A. G.) 

Rank — 

Advancement in, dental surgeons (J. A. G.) 

Commissioned officers of same date of appointment, 
commissioned service in Navy (.1. A. G.) 

Officers of same grade (J. A. G. ) 

Rations — 

Allowance of, civilian emplovees under treatment in 
hospital (J. A. G.). " 

Commutation of, enlisted men (J. A. G.) 

Real Property. See Land. 
Recess Appointments. See Appointments. 
Records. See Official records. 
Records op Trial. See Courts-martial. 
Recommission — 

Ex-officers, in Army (J. A. G.) 

Officers formerly in service, permitted to resign (J. A. G.) 
Recruiting Service — 

Enlisted men detailed as corporals in, when discharged, 
reenlistment pay (Comp.) 

Towers and duties of retired officer when assigned to, 

summary court officer (J. A. G.) 

Red Cross — 

Mileage of officers assigned to (J. A. G.) 

Sale of medical equipment to (J. A. G.) 

Reenlistment. See Enlistment. 
Regimental Commander — 

Power to reduce chief musician to ranks (J. A. G.) 

Registration — 

Mail matter, object of, postage therefor furnished 

( J. A. G.) 

Regular Army. See Army. 

Regulations, Army. See Army Regulations. 

Reimbursements — 

Burial exj^enses of clerk, Quartermaster Corps (Comp.). 

Car fares, funeral escort from post (Comp.) 

Claim for expenses hauling baggage (Comp. ) 

Clerks on temporary duty, living expenses (J. A. G.)... 

Loss of civilian clothing by enlisted man (J. A. G.) 

for Meals at home station, civilian employees (Comp.). 

Private funds expended for Government (J. A. G.) 

Religious Worship — 

Erection of sectarian chapels on militarv reservations 

(J. A. G.) \ 

Rental — 

Land purchased by Government prior to final payment 

(Comp.) : 

Repairs — 

to Buildings. See Buildings. 

Lighthouse tender damaged by steamer of Quarter- 
master Cori)8 (Comp.) 

Patented articles (J. A. G.) 



Year. No. Pago. 



1917 



1915 


18 


1915 


18 


1914 


33 


1914 


39 


1916 


47 


1914 
1916 


39 

57 


1916 
1916 


8 
8 



1917 
1916 


15 
18 


1912 


20 


1915 


9 


1914 
1912 


5 
12 


1916 


18 


1915 


32 


1916 
1913 
1916 
1914 
1916 
1916 
1916 


13 

17 
8 
25 
13 
47 
8 


1912 


20 


1917 


18 


1914 
1914 


46 
8 



18 



INDEX. 



755 



Bulletins. 


Year. 


No. 


Page. 


Repairs — Continued . 








to Property of officers and soldiers used bv Government 








(J. A. G.) " 


1914 


50 


444 


Reporter. — 








Courts-martial, employment of Army field clerks as 








(J. A. G.) 


1917 


9 


648 


Reservations. See Military reservations. 








Reserve Officers, National Guard. See National 








Guard, reserve officers. 








Resignations — 








Officers dm-ing Civil War, desertion (J. A. G.) 


1915 


9 


472 


Officers of National Guard, authority of governor to ac- 








cept (J. A. G.) 


1916 


34 


609 


Withdrawal of, before acceptance (J. A. G.) 


1913 


4 


147 


Res Judicata — 








Military reservation boundary determined by bound- 








ary commission (J. A. G.) - 


1912 


12 


15 


Responsibility^ — • 








Damage to public property due to negligence (J. A. G.) . . 


1913 


8 


162 


Overpayments due to erroneous entry of soldier's en- 








listment (J. A. G.) 


1913 


4 


149 




1913 


8 


171 


Sleeping-car berth erroneously furnished (J. A. G.) 


1913 


27 


258 


Unauthorized sleeping-car accommodations to enlisted 








men (J. A. G.) 


1913 


8 


164 


Retired Enlisted Men — 








See also Enlisted men. 








Allotment of pay by (Comp.) 


1914 


43 


425 


Death of, in Army hospital^ disposition of private prop- 








erty (J. A. G.) 


1914 


48 


431 


Pay status on enlistment in National Guard (Comp.) 


1917 


15 


668 


Persona drawing two salaries, pay and pension not sal- 








aries (('omp . ) 


1916 


18 


586 


Service in militia (J. A. G.) 


1913 


18 


218 


Retired Naval Officer — 








Appointment of, to post under Civil Service Commis- 








sion (At. Gen.) 


1912 


20 


53 


Retired Officers— 








See also Officers, Army. 








Acting as agents in prosecution of claims against Gov- 








ernment ( At. Gen. ) 


1912 


20 


52 


Acting as superintendent of Indian schools (Comp.) . . .. 


1912 


20 


50 


Active service under detail, not to be counted for ad- 








vancement in gi-ade (J. A. G.) 


1916 


39 


618 


Active staff duty, eligibility to serve as summary court 








(J. A. G.) 


1914 


52 


450 


Assigned to active duty, authority to command enlisted 








men (J. A. G.) 


1914 


52 


452 


Assigned to active duty, pay and allowances (J. A. G.) . . 


1916 


28 


600 


Assignment to duty as post exchange officer (J. A. G. ) . . 


1913 


17 


195 


Certificate of, as to destruction of property (J. A. G.) . . . 


1913 


18 


219 




1918 


18 


580 


Commission in National Guard, status (J. A. G.) 


1918 


28 


600 


Detailed as acting quartermaster (J. A. G.) 


1914 


25 


383 


Detailed to educational institutions, mounted pay 








(J. A. G.) 


1913 


38 


320 


Exercise of command (J. A. G.) 


1913 


35 


308 


Forage allowance on active duty (J. A. G.) 


1915 


28 


506 


Longe^dty pay, active service in time of war (Comp.). . . 


1916 


28 


604 


Members of courts-martial (J. A. G.) 


1917 


15 


666 


Mileage, serving as witness (Comp. ) 


1918 


47 


631 


Powers and duties when assigned to recruiting duty, 








summary court (J. A. G.) * . . 


1915 


9 


475 



756 



INDEX. 



Bulletins. 



Retired Officers — Continued. 

Promotion for Civil War ser\'ice (J. A . G.) 

Restoration to active list, how carried (J. A. G.) 

Ser\'ice of chaplains on retired list, promotions (J. A. G. j . 

Superintendents of Indian schools (At. Gen.) 

Taxation of property by State (J. A. G.) 

Retirement — 

Allowances when retired at advanced grade (J. A. G.) . . 

Army officers, selection of home on (Comp.) 

Assignment of paymasters' clerks to active duty (.J. A. G.) 

Change of officer's status (J. A. G.) 

Enlisted men, counting commissioned service for pur- 
pose of (J. A. G.) 

Enlisted men, counting time spent in confinement for 
desertion (J. A. G.) 

Officers of Dental Corps on failure to pass physical ex- 
amination (J. A. Ct.) 

Officers of District of Columbia militia (J. A. G.) 

Officers of Philippine Scouts (J. A. G.) 

Pay clerks (J. A. G.) 

Service as civilian in Quartermaster Corps not counted 
for (J. A. G.) 

Service in the Philippines (J. A. G.) 

Service in Philipjiine Scouts (J. A. G.) 

Retiring Boards — ■ 

Army, action of President on (J. A. G.) 

Returns Office — 

Contracts, return of, disclosure of confidential plans 
(At. Gen.) 

Filing supplemental contracts in (J. A. G.) 

Postmasters, authority to administer oaths to returns 

for(J. A. G.) 

Revenue-Cuttee Service — 

Light allowance of officers under Army Regulations 

(Comp.) 

Reviewing Authority — 

Effect of approval of sentence, a portion of which is 

simultaneously remitted (J. A. G.) 

Revised Statutes — • 

Section 1222, acceptance of office in National Guard 
(At. Gen.) 

Section 1222, compatibility of officer on active list hold- 
ing office in militia (J. A. G.) 

Section 1222, officers of Regular Army holding commis- 
sion in militia (J. A. G.) 

Section 1325, reappointment of cadets to Military Acad- 
emy under (J. A. G.) 

Section 1784, presents from employees to official su- 
periors (J. A. G.) 

Section 2166 , alien enlisted men (Fed . Ct . ) 

Section 3477, assignment of claims (J. A. G.) 

Section 3717, separate agreements under, for public 
works (J. A. G.) 

Section 3744, construed (Fed. Ct.) 

Rewards^ 

Additional expenses not included in apprehension and 
delivery (J. A. G.) 

Amendment of Army Regulations, conviction of ab- 
sence without leave (J. A. G.) 

Claim for arresting after surrender to military author- 
ities (J. A . G.) 

Confined in prison, information by Bertillon clerk as to 
(J. A. G.) 



Year. 


No. 


1914 
1915 
1914 
1913 
1913 


1 
30 

8 
17 
35 


1913 
1912 
1912 
1918 


27 
12 
20 

18 


' 1918 


39 


1912 


20 


1917 
1914 
1914 
1913 


18 

14 

1 

1 


1913 
1913 
1913 


1 

4 
38 


1912 


12 


1912 
1914 


12 
14 


1914 


52 


1914 


50 


1912 


12 


1912 


12 


1912 


12 


1912 


12 


1912 


12 


1912 
1916 
1912 


12 

28 
12 


1912 
1916 


20 
1 


1912 


12 


1915 


1 


1912 


12 


1912 


12 



INDEX. 



757 



Bulletins. 



Rewards — Continued. 

Delivered as absent without leave but tried for deser- 
tion (J. A. G.) 

Deserters, apprehending while serving in Navy or ma- 
rines (J. A. G.) 

Deserters from militia or National Guard, in service of 

United States (J. A. G.) 

Deserters, national guardsmen, organization mustered 

out (J. A. G.) 

Deserters, payment of, when delivered to but not ac- 
cepted by military authorities (J. A. G.) 

Desertion, stoppage of pay for (J. A. G.) 

Effect of statute of limitations (J. A. G.) 

Persons defacing monuments in cemeteries (J. A. G.).. 

Recovering bodies of deceased soldiers (J. A. G.) 

Recovering public property (J. A. G.) 

Rhode Island — 

Discrimination against Army uniform, etc., prohibited. 
Rifle Competition — 

Expenses of, at Camp Perry, Ohio (J. A. G.) 

Rifle Ranges. See Militia. 
Riparian Rights — 

Navigable waters, paramount authority of United States 

(Fed. Ct.)..... 

Navigable waters, right of United States to use river bed 

(J. A. G.) 

Rivers and Harbors — 

See also Navigable waters. 

Contributed funds, care of (Comp.) 

Erection of wharves in Alaska (J . A. G.) 

Lands beneath navigable, use of (J. A. G.) 

Overflow due to improvements in (J. A. G.) 

Roads — • 

Dedication of, through national cemeteries (J. A. G.). 
Improvement of, leading to military reservations 

(J. A. G.) 

Streets and, control of, thi-ough military reservations 

(J. A. G.) .-..- 

Streets and, improvement of boundary roads at national 

parks (J. A. G. ) 

Work upon by citizens required by State laws (Fed. 

Ct.) 

Salaries. See Pay. 
Sales— 

Disposition of proceeds of manure from ambulance com- 
panies (J. A. G.) 

Fuel to civilians, postmistress at Army post (J. A. G.). 

Proceeds from quartermaster stores (Comp.) 

of Public property. See Public property. 
Salvag e — 

Drifting submarine mine (J. A. G.) 

Saturdays — 

Foiu'-hoiu- day for temporary employees on (J. A. G.). . 
Schools— 

See also Educational institutions. 

for Children at Army post (J. A. G.) 

Seals — 

After signatures to bonds (J. A. G.) 

Seamen — 

Army transport crews, general laws applicable to 

(J. A. G.) 

Army transport service, appropriation for medical 

attendance (J. A. G.) 

Medical treatment of transport employees (J. A. G.). . . 



Year. 


No. 


1912 


12 


1912 


20 


1916 


28 


1916 


47 


1914 
1915 
1913 
1913 
1914 
1915 


33 

36 

1 

13 
39 
14 


1917 


IS 


1913 


13 


1914 


46 


1915 


36 


1913 
1913 
1914 
1914 


29 
13 
14 
14 


1913 


27 


1913 


8 


1913 


17 


1914 


25 


1916 


8 


1914 
1914 
1917 


50 
33 
15 


1915 


21 


1914 


39 


1913 


27 


1913 


13 


1916 


57 


1912 
1913 


12 
17 1 



Page. 



758 



INDEX. 



Bulletins. 




Second Lieutenants — 

National Guard, appointment, antedating rank (J.A.G.). 

Order of filling vacancies in grade of, sec. 24, national 

defense act (J. A. G.) 

Secretary of War — 

Acceptance of chapel donated on military reservation 
(J. A. G.) 

Authority to lease water power (At. Gen. ) 

Cancellation of bonds on acceptance of new (J. A. G.). . . 

Duty as to contributed funds for rivers and harbors 
(Comp.) 

Lease public lands (J. A. G.) 

May grant temporary use of public works (J. A. G.) 

Power to change Army Regulations (Ct. Cls.) 

Power to loan public property (J. A. G.) 

Power to relocate railroad right of way (J. A. G.) 

Sentences — 

See also Courts-martial. 

Computation of expiration of (J. A. G.) 

Courts-martial, detention of pay (J. A. G.) 

Courts-martial, dishonorable discharge while serving 
prior sentence, cumulative sentences (J. A. G.) 

Courts-martial, extra-duty pay not forfeited by (Comp.) . 

Courts-martial, forfeiture of pay, when begins to run 
(Comp.) _. -;--_- 

Courts-martial, publication of, jurisdiction to amend 
(J. A. G.) 

Discharge without honor not revocable (J. A. G.) 

Dishonorable discharge suspended, designation of 
prisoner under (J. A. G.) 

Inadecjuate, officer mistreating men (J. A. G.) 

Relation to finding and evidence (J. A. G.) 

Remission in case of Marine, termination of detachment 
with Army before execution of (J. A. G.) 

Retention of soldiers guilty of moral turpitude not 
favored (J. A. G.) 

Suspended, pay during confinement and formfor ( J. A.G.) 
Sergeants — 

First class. Medical Department, rank of (J. A. G.) 

Service with Troops. See Detached service. 
Shelter Tents — 

Issue of, to officers on memorandum receipts (J. A. G.). . 
Signal Corps— 

Aviation section, act establishing, repeal of prior 
statute (J. A. G.) 

Composition of, under national defense act (J. A. G.) 

Motor cycles, whether passenger carrying vehicles 

(J. A. G.) 

Sleeping-Car Accommodations— 

Enlisted men, Army transportation (J. A. G.) 

Soldiers. See Enlisted men. 
Soldiers' Home^ — • 

See also National Dome for Disabled Volunteer Soldiers. 

Admission of discharged soldier to, when able to earn 

living ( J. A. G .) 

Special Employees. See Clerks and employees. 
Specifications — 

Necessity for precision in drawing (J. A. G.) 

Staff Departments^ — 

Details in (J. A. G.) 

Details to, detached service (J. A. G.) 

Details to, how made (J. A. G.) 

Staff Duty — • 

Promotion of officers while on, detached service (J. A. G.) 



1916 
1916 



1913 
1913 
1917 

1913 
1913 
1913 
1914 
1913 
1913 



1913 
1915 

1915 
1915 

1915 

1915 
1913 

1914 
1915 
1915 

1914 

1917 
1914 

1917 



1917 

1914 
1916 

1914 

1912 



1914 



1915 

1916 
1914 
1913 

1915 



No. 


Page. 


18 


57' 


18 


56' 


31 
23 
15 


29( 
24; 
65* 


29 
1 

23 
8 

35 

18 


28; 
V2t 
23i 
35 
30' 
21( 


38 
21 


311 
49' 


36 
18 


51{ 

49: 


9 


47' 


5 

27 


46( 
24< 


46 
36 
39 


43( 
53 
53 


52 


45; 


18 
46 


68 
42{ 


15 


66' 


15 


65f 


43 
18 


41( 
58( 


50 


44. 


20 


3( 


39 


41. 


39 


53( 


18 

25 

8 


• 56 
37} 
15( 


1 


45' 



INDEX. 



759 



Bulletins. 


Year. 


No. 


Page. 


Staff Officers— 








Detail of, as officer of day, command (J. A. G.) 


1915 


32 


514 


Signing discharges of enlisted men (J. A. G.) 


1914 


52 


450 


State Courts— 








Arrest of enlisted men, civil proceeding for debt 








(J.A.G.)... 


1916 


8 


549 


Requiring citizens to work on roads (Fed. Ct.) 


1916 


8 


550 


State Duty — 








National Guard, under call of governor, payment for 








(J. A. G.) 


1917 


18 


676 


State Laws — 








See also Government agencies. 








Effect of requirements acquiesced in by United States 








(Comp.) -- 


1915 


26 


507 


Inspection of Government horses at State lines under 








(Comp.) .- - - 


1915 


5 


469 


Licenses and fees imposed by, for operation of Govern- 








ment automobiles (J. A. G.) 


1914 


52 


453 


Operation of, within military reservations (J. A. G.) 


1915 


1 


461 


Taxation by. See Taxation. 








States — 








Laws prohibiting discrimination against Army uniform, 








etc 


1917 


18 


683 


List prohibiting unlawful wearing of Army uniform, 




etc 


1917 


18 


687 


Statute of Limitations— 




Eifect of, as to payment of reward in case of deserter 








(J. A. G .) 


1913 


1 


110 


Stenographic Reporters — 










1917 


9 


648 


Employment of enlisted men as (J. A. G.) 


1913 


23 


233 


Stoppage op Pay. See Pay of enlisted men; Pay of officers. 








Stoppages Against Civilian Employees — 








Reimbursement of United States (J. A. G.) 


1917 


18 


672 


Stowaways — • 








Army transport, subsistence, appropriation (J. A. G.)... 


1915 


30 


510 


Subcontractors — 








Eio'ht-hour day application to (At Gen.) 


1912 


12 


21 


Submarine Mine — 








Drifting, salvage of (J. A. G.) 


1915 


21 


501 


Subpoenas — 








to Chiefs of bureaus from Federal court (J. A. G.) 


1913 


8 


160 


Subscriptions to Periodicals — 








Advance payments of (J. A. G.) 


1917 


18 


678 


Subsistence — 








Applicant for enlistment, fraudulently obtaining (Fed. 








C t . ) 


1917 


18 


681 


Enlisted men exceeding commutation allowance 




(J. A. G.) 


1913 


17 


196 


Officers and employees limited to actual cost of, in 
connection witn traveling expenses (Comp.) 








1914 


33 


405 


Purchased for militia in connection with joint encamp- 








ment and maneuvers, cost of transportation (J. A. G.)- 


1914 


39 


411 


Stores, sale of, and price paid (J. A. G. ) 


1914 


20 


368 


Stores, sale of, to member of Officers' Reserve Corps on 








inactive list (J. A. G.) 


1917 


9 


654 


Transport surgeon, without charge to, unauthorized 








(J.A.G.) 


1915 


21 


501 


Subsistence Department — 








Absorption of certain officers in consolidated Quarter- 








master Corps, full opinion (J. A. G.) 


1912 


22 


88 


Summary Court— 








See also Courts-martial. 








Retired officer on active staff duty, eligibility to serve as 








(J.A.G.) 


1914 


52 


450 



760 



INDEX. 



Bulletins. 




Supplemental Contracts. See Contracts. 
Supplies — 

See also Contracts. 

Adjustment of appropriations v/hen purchases are made 
for one bureau or department from another (Comp.)- 

Advertisement without result, open-market pm-chase 
(J. A. G.).. 

Aeroplane without advertising, lack of competition 
(J. A. G.)... 

Annual, quantity contemplated in agreement to be fur- 
nished (J. A. G.) 

for Army posts in District of Columbia (At. Gen.) 

Deliveries of, after expiration of contract (Comp.) 

Delivery of, after expiration of contract (Comp.) 

Discounts on bills for gas (Comp. ) 

for Executive departments (Comp.) 

Hospital, purchased from hospital fund, transportation 
(Comp.) 

Liability for failure to deliver under agreement repre- 
sented by proposal and award (Comp.) 

Medical, for civilian camps of instruction (J. A. G.). . . 

Military, purchase of, by Organized Militia (J. A. G.). 

for Office of Chief of Staff (Comp.) 

Open market, order in excess of needs during life of con- 
tract (Comp.) 

Paid accounts for, may be reopened for mistakes 
(J. A. G.) 

Proposals for finishing, alteration after opening bids 
(J. A. G.) 

Purchase from civilian employees (J. A. G.) 

Pm'chase from persons in military service (J. A. G.). . . 

Purchase in open market without advertising (Comp.). 

Purchase of, motor trucks, advertising requirements 
(Comp.) 

Purchase of, requirement as to (Comp.) 

Purchase of, requirements as to advertising (Comp.). . . 

Relief of contractors on account of in- /(J. A. G.). 
creased prices due to European war l(At. Gen.). 

Renewal of contracts for (Comp.) 

Requirements as to advertising for (Comp.) 

for Use of Army service in District of Columbia (Comp.) 

for Walter Reed General Hospital (J. A. G.) 

Supply Company — 

Commanding officer of, whether on detached duty 

(J. A.G.) 

Surety — 

See also Contractors; Contracts. 

Assignment of contract to, by contractor, payment to 

assignee (J. A. G.) 

May be party to contract (J. A. G.) 

Released by modification of contract (J. A. G.) 

rgical Operations — 
When illness therefrom may be recorded as in line of 

duty (J. A. G.) 

Suspended Sentence. 5ee Courts-martial ; Sentences. 
Suspensions — ■ 

Civilian employees, pay during (Comp.) 

Target Pr.vctice — 

Umpire at, Coast Artillery Corps, service with troops 
(J. A.G.) 



1914 



1913 



1914 



1916 


13 


1913 


17 


1915 


9 


1916 


8 


1913 


17 


1913 


17 


1915 


30 


1914 


52 


1916 


18 


1915 


1 


1913 


27 



1915 



1913 



1914 


50 


1915 


21 


1914 


43 


1914 


43 


1916 


8 


1915 


14 


1915 


5 


1914 


46 


1915 


5 


1914 


14 


1915 


5 


1913 


23 


1913 


8 


1913 


27 



1917 



1914 
1913 
1913 



1913 
1914 
1914 



46 



15 

43 
8 

4 

4 
20 
39 



INDEX. 



761 



Bulletins. 



Taxation— 

See also Government agencies; State laws. 

Chauffeur's license, for Government employees (J. A. G.) 

Government agencies on military reservation, automo- 
biles (J. A. G.) 

Government agencies, State licenses or fees for opera- 
tion of automobiles (J. A. G.) 

Inspection fees, officers' mounts (Comp.) 

Philippine customs stamp tax, exemption of Govern- 
ment property from (At. Gen.) 

Philippine tariff on jute bags, Quartermaster's Depart- 
ment (Comp.) 

Post exchanges, internal revenue stamps, sales of per- 
fumeries and cosmetics (J. A. G.) 

Post exchanges, internal revenue tax, sale of tobacco 
(J. A.G.) 

Retired officers on duty at State schools (J. A. G.) 

Soldier assigned to Army Reserve (J. A. G.) 

Soldier's baggage, stamp tax (J. A. G.) 

State tax on land title (J. A. G.) 

State tax on operation of automobiles (J. A. G.) 

State, power of, to impiison soldier for nonpayment of 

poll tax (Fed. Ct.) 

Teachkr or French — 

Military Academy, French citizen, oath (J. A. G.) 

TeLEGRAjIS — 

Concerning deserters, when expense for, is included in 

reward (Comp.) 

Damage for mistake in transmitting (J. A. G.) 

Delinquent contractors, payment for, authorized (Comp.) 
Expenses for, in connection with purchase of mount 

(J. A.G.) 

Government rates, National Guard (J. A. G.) 

Night, and lettergrams, mistake in designation, rates 

(Comp.) 

Telegraph Companies — 

Damages, limiting liability of (J. A. G.) 

Telegraph Operators — 

Not laborers or mechanics Avithin the meaning of eight- 
hour law (J. A. G.) 

Telegraph Service — 

Charges for, to other departments (J. A. G.) 

Telephone Service — 

Installation in private quarters (Comp.) 

Installation in private quarters (Comp.) 

Installation in pi'ivate residence (J. A. G.) 

Payment for, in building owned by Government but 

used as private residence (Comp.) -. 

Tempor.^ry Dutv — 

Clerks, etc., on. See Clerks and employees. 
Heat and light to officers on. See Heat and light. 
Training camps, retaining station, quarters, heat and 

light (J. A. G.) 

Temporary Employees. See Clerks and employees. 

Tents. See Shelter tents. 

Time— 

Computation for fractions of months (Comp.) 

Computation for 31st of month (Comp.) 

Time of Peace — ■ 

Construction of law as to detached service in, full 

opinion (J. A. G.) 

Status of officer where law relating to detached service 
is inoperative because time other than (J. A. G.) 



Year. 


No. 


191G 


18 


1912 


20 


1914 
1914 


52 
25 


1912 


12 


1913 


1 


1915 


1 


1915 
1913 
1914 
1915 
1913 
1914 


1 
35 
25 
14 
27 
20 


1916 


1 


1912 


20 


1913 
1914 
1913 


8 

46 

8 


1913 
1916 


23 

28 


1914 


25 


1914 


46 


1913 


29 


1914 


20 


1913 
1916 
1914 


35 

39 

5 


1912 


20 


1916 


18 


1914 
1913 


20 

23 


1912 


22 


1914 


33 



762 



INDEX. 



Bulletins. 



Tips— 

Military attaches abroad, payment of orderly and 
(Comp.) 

Title — 

Buildings erected on militarv reservations under license 
(J. A. G.) " 

Torts — 

Government agents, failure to keep sidewalk in repair 

(J. A. G.) 

Government not responsible for torts of employees 

(Comp.) ^ 

Government not responsible for torts of officers (J. A. G.). 
Transfer op Officers 

Below grade of lieutenant colonel, place on lineal list, 

sec. 25, national defense act (J. A. G.) 

Personal examination for (J. A. G.) 

Transportation — 

See also Travel allowances; Traveling expenses. 
Allowance to general prisoner on discharge, continental 

limits of the United States (J. A. G.) 

Allowances to men furlouglied to Army Reserve (Comp.). 
Applicants for enlistment to recruit depot, fraudulently 

obtaining (Fed. Ct. ) . . . _. ;-.-■-- 

Army officer engaged in entertaining foreign officials 

(Comp.) _ 

Army supplies in American AT^essels (J. A. G.) 

Articles imported for a particular use (J. A. G.) 

Attendant in charge of horses (Comp.) 

Authorized mounts, officers of National Guard (J. A. G.). 
Automobile, hire from officer unauthorized (J. A. G.)... 

Baggage allowance and crating (J. A. G.) 

Baggage of civilian employees (J. A. G.) 

Baggage of officer on mileage status (Comp.) 

Carrier's liability on Government bill of lading (Comp.). 

Ciiarges for special services by company (Comp.) 

Civilian employees. Signal Corps, land-grant deduc- 
tions (Comp.) 

Commodity and class rates (Comp.) 

Condemned Army horses issued to militia, appropria- 
tion (J. A. G.) 

Contract party, rate involving land-grant deductions 
(Comp.) •.-.-:••.- 

Cost for subsistence purchased for militia in connec- 
tion with joint encampment and maneuvers (J. A. 
G.) 

Cost of excess baggage, refundment by officer (J. A. G.). 

Deduction for loss occurruig in prior shipment (Comp.). 

Deserter's remains, killed while attempting to escape 
(J. A.G.) 

Difference between party and individual service (Comp.) 

Discharged general prisoners (J. A. G.) . . . - 

Discharged general prisoner, Marine Corps, serving with 
Army (J. A.G.) 

Discharged soldier using request as part payment on 
through-trip fare (Comp. ) 

Effects of enlisted men on dischai-ge (J. A. C.) 

Election of routes by discharged soldiers (J. A . G.). ._. . . 

Enlisted men convicted of desertion, from plave of trial 
to organization, sentence disapproved, stoppage of 
pay (J. A. G.) 

Enlisted men, on discharge (Comp. ) 

" Enlisted men on furlough ordered to duty (Comp.) 



Year. No. 



Page. 



1914 



1915 



1912 



1916 
1913 



191(j 
1917 



1916 
1915 

1917 

1914 
1913 
1914 
1913 
1916 
1915 
1913 
1913 
1913 
1913 
1913 
1916 

1915 
1913 

1915 

1913 



1914 
1914 
1914 

1915 
1914 
1914 

1915 

1915 
1913 
1914 



1015 
1915 
1915 



43 
9 

20 

28 
17 



18 
18 



18 
36 

18 

43 
27 
25 
31 

57 
36 
27 
35 
27 
29 
18 
57 

26 
31 

36 

8 



39 

8 
50 

18 

20 

5 

30 

1 

35 

5 



30 
32 
30 



IKDEX. 



763 



Bulletins. 



Transportation — Continufid. 

Enlisted men returning from furloughs, cost of (J. A. G.) 
Excess baggage, apportionment of charges (Comp.) 

Excess baggage on change of station (Comp.) 

Excess, for discharged soldiers by longer route (J. A. G.) . 
Excess passenger baggage of officer, cost of (J. A. G.). . 
Excess shipment of goods on change of station (J. A. ij.) 
Freight charges, shrinkage of weight of sliipment en 

route (Comp.) 

Funeral escort, refundment (Comp.) 

Furnishings for public buildings, land-grant roads 

(Comp.) 

Government bill of lading, loss by unprecedented flood 

(Ct. Cls. ) 

Hire of automobile by officer (Comp. ) 

Hire of automobiles by officers on mileage status (Comp. ) 

Hire of automobile for field inspection (Comp.) 

Horses, change of station by ofiicer, valuation (Comp.) . 

Horses, resignation of officer (J. A. G. ) 

Hospital supplies, cost payable from hospital fund 
(Comp.) , 

Household goods, carrier's risk (Comp.) 

Household goods, change of station (J. A. G.) , 

Household goods, professional books (Comp.) 

Household goods, rates on (Comp. ) 

Immigrant rate, troop property (Comp. ) , 

Land-grant deductions, basis of (Comp.) 

Land-grant deductions, extra-fare train (Comp.) , 

Land-grant deductions, persons in military service 
(Comp.) , 

Liability of Government as carrier of contract supplies 
(J. A. G.) 

Loss of public property at railroad depot (J. A. G.). . . . 

Loss of ticket issued on transportation request (Comp.). 

Mileage when Government conveyance is used (Comp.) 

Militia, Army officer detailed as instructor and inspec- 
tor (J. A. G.) 

Mounts from place of purchase to officer's station, com- 
putation of cost (J. A. G. ) 

Officers' baggage, allowance on change of station, pro- 
motion (J. A. G.) 

Officers' change of station, baggage allowance (J. A. G.). . 

Officers engaged on map work (Comp.) 

Officers' excess baggage (Comp. ) 

Officers' horses (J. A. G.) 

Officers on mileage status (Comp.) 

Officers' private mounts, land -grant deductions (Comp.). 

Organized Militia in connection with joint maneuvers, 
deductions under land-grant acts (Comp. ) 

Parcel-post, insurance (J . A. G. ) 

Parcel-post, limitation on Government frank (J. A. G.). 

Parcel-post packages, official business (At. Gen.) 

Party rates, number of persons below limit (Comp.). . . . 

Passenger, party rates (Comp.) 

Personal baggage of officers (Comp.) 

Private mounts, National Guard, officers mustered out 
(J. A. G.) 

Redemption of unused portion of ticket issued on Gov- 
ernment request (J. A. G.) 




Page. 



1915 
1913 

1914 

1912 
19]4 
1914 
1913 
1914 
1914 
1913 
1915 
1915 

1915 
1914 
1913 
1913 
1913 
1915 
1913 
1914 

1915 

1914 
1913 
1915 
1914 

1912 

1914 



1915 


36 


1916 


57 


1913 


17 


1913 


35 


1913 


4 


1914 


5 


1917 


3 


1914 


52 


1913 


17 


1913 


8 


1913 


13 


1913 


38 


1913 


29 


1913 


31 


1916 


47 


1914 


33 



36 

17 

20 

12 
5 
5 
23 
25 
50 
27 
21 
39 

30 

14 
8 
38 
13 
32 
27 
25 

14 

5 
31 
18 

5 

12 
33 



764 



INDEX. 



Bulletins. 



Transportation — Continued . 

Requests. See Transportation requests. 

Settlement for unused portion of ticket furnished Army 
nurse for transportation to her home (J. A. G.)..". 

Shipment or disposition of effects of insane soldier 
after discharge (J. A . G.) 

Shipments on vessels not of American register (J. A. G.) 

Sleeping-car accommoiations to enlisted men (J. A. G.) 

Sleeping-car berths erroneously furnished (J. A. G.)... 

Soldier absent without leave (J. A. G.) 

State inspection fees, officers' mounts (Comp.) 

Ticket iu variance with transportation request (Comp.) . 

Transports, families of officers and others on Army 
(J. A. G.) -. 

Travel allowances of discharged soldiers, selection of 
point within continental limits of United States (J. 
A. G.) 

Written proposals and acceptances fixing rates, termi- 
nation of (Comp.) 

Transportation in Kind — 

Furnished to discharged soldier but not used (J. A. G.). 
Transportation Requests — ■ 

Charge for berth reserved for discharged soldier on (Comp.) 

Delegation of authority to sign (J. A. G.) 

Discharged soldier using, as part payment on through- 
trip fare (Comp . ) .- 

Loss of ticket procured on (Comp.) 

Redemption of unused portion of ticket issued on (.1. A. G.) 
Transport Service — 

Ofiicer performing temporary duty in, entitled to quar- 
ters or commutation (Comp . ) 

Stowavv^ays, subsistence, appropriation (J. A. G.) 

Use of, in transporting Chinese exhibits to Panama- 
Pacific International Exposition (J. A. G.) 

Transport Surgeons — 

Subsistence of, at public expense (J. A. G.) 

Travel Allowances — 

See also Mileage; Transportation. 

Attendance of officer at prison association (Comp.) 

Charge for berth reserved for discharged soldier on trans- 
portation request (Comp.) 

Discharged soldier, from place of discharge (Comp.) 

Discharged soldiers, not subject to deductions (Comp.) . . 

Discharged soldiers, sleeping-car berth (Comp.) 

Discharged soldiers, transportation varying from request 
(Comp.) 

Discharged soldiers, traveling by longer routed /'(^q^iV) ) " 

Discharged soldiers who enlisted in Philippines (Comp.) . 
Election of routes by discharged soldiers (J. A. G.) 

Enlisted men on dischargej /^qj^I. \ 

Enlisted men on discharge, personal effects (J. A. G.). . 
Excess cost of transportation of discharged soldier over 

longer route (J. A. G.) 

Officer, not performed under competent orders (J. A. G.) . 
Officer, traveling with detachment as escort to officer of 

Mexican Army (J. A. G.) 

Officers, upon theii" discharge (J. A. G.) 

Station changed while officer is on leave of absence 

(Comp.) 

Subsistence, enlisted men exceeding allowance 

(J. A. G.) ' 



Year. 


No. 


1914 


39 


1914 


50 


1913 


17 


1913 


8 


1913 


27 


1913 


29 


1914 


25 


1915 


18 


1913 


13 


1914 


33 


1915 


1 


1915 


5 


1914 


46 


1914 


1 


1915 


1 


1915 


18 


1914 


33 


1912 


20 


1915 


30 


1914 


39 


1915 


21 


1913 


17 


1914 


ACy 


1914 


43 


1914 


14 


1914 


5 


1914 


43 


1913 


4 


1913 


17 


1913 


8 


1914 


5 


1913 


1 


191(1 


IS 


1913 


35 


1914 


50 


1915 


1 


1915 


1 


1914 


20 


1913 


4 


1913 


17 



INDEX. 



765 



Bulletins. 



Travel Allowances — Continued. 

Transportation in kind iurnished discharged soldier but 
not used (J. A . G . ) 

Transportation of discharged soldier to point selected 
mthin continental limits of United States (J. A. G.) . . 

Travel between Alaska and United States (Comp.) 

Traveling Expenses — 

See also Mileage. 

Allowances to ci\dlian employees (Comp.) 

Civilian employees on temporary duty (Comp.) 

Computation of (Comp.) 

Expenses incurred after return from journey (Comp.). . 

Hire of automobiles (Comp.) 

Hire of automobiles by officers (Comp.) 

Military attaches abroad as military observers (J. A. G.).. 

Military attaches abroad, payment of -j >j ^ q\ 

Military attaches abroad, pay of orderly and for ti})s 

(Comp.) 

Militarj^ attaches and military observers abroad (J. A. G.) 
Military attaches going to and returning from post of 

duty (Comp.) 

National Guard in responding to call (J. A. G.) 

Officer on duty in connection with National Guard 

(J. A. G.) , 

Officers and employees limited to actual cost of sub- 
sistence (Comp.) 

Officers assigned to Red Cross (J. A. G.) 

Officers on civil business with commission (J. A. G.) 

Traveling with Troops — 

Enlisted men, when regarded, Pullman-car accommoda- 
tions (J. A. G.) 

Officer traveling with detachment as escort to Mexican 

officer (J. A. G.) 

Travel Pay. See Pay of enlisted men. 
Typewriters — • 

Exchange of (J. A. G.) 

Unforseeable Cause — 

Belays in completion of contract on account of (Comp.) . . 
Uniforms — 

Federal law prohibiting discrimination against 

Federal law prohibiting unlawful wearing 

Bist of States prohibiting unlawful wearing of Army, etc. . 
National guardsmen, retention of, on muster-out (J .A.G.) 
State laws prohibiting discrimination against — 

Connecticut 

Florida 

Kentucky 

Maryland 

Massachusetts 

Minnesota 

New Hampshire 

New York 

Oklahoma 

Pennsylvania 

Rhode Island 

Virginia 

United States, wearing of, prohibited (J. A. G.) 

Wearing of, by civilians of Army Y. M. C. A. (J. A. G.). 
United States — 

Continental limits of, to which soldiers may be furnished 

transportation on discharge (J. A. G.) 

Baw prohibiting discrimination against Army uniform, 
etc 



Year. 


No. 


1915 


5 


1914 


33 


1913 


1 


1913 


8 


1913 


18 


1914 


5 


1914 


50 


1913 


23 


1914 


5 


1915 


9 


1914 


46 


1914 


50 


1914 


43 


1914 


50 


1914 


50 


1917 


18 


1917 


3 


1914 


33 


1914 


5 


1913 


27 


1915 


3G 


1915 


1 


1917 


18 


1914 


46 


1917 


18 


1917 


18 


1917 


18 


1917 


3 


1917 


18 


1917 


18 


1917 


18 


1917 


18 


1917 


18 


1917 


18 


1917 


18 


1917 


18 


1917 


18 


1917 


18 


1917 


18 


1917 


18 


1917 


3 


1917 


3 


1914 


33 


1917 


18 



766 



INDEX. 



Bulletins. 



United States — Continued. 

Law prohibiting unlawful wearing of uniform 

Patented inventions, use of, by (Fed. Ct.) 

Stojipage of pay of enUsted men to reimburse (J. A. G.).. 
Unliquidated Damages. See Damages. 
Vehicles — 

Loss of, hired by Government employee traveling on 
public business (Comp.) 

Passenger-caiTying, motorcycles (Comp.) 

Passenger-caiTying, whether motorcycles for Signal 

Corps are (J. A . G. ) 

Veterinarians — 

See also Veterinary ('orps. 

Appointment under national defense act (J. A. G.) 

Examination for appointment, scope of (J. A. G.) 

First board of examiners, composition of, national de- 
fense act (J. A. G.) 

Quarters or commutation while on temporary duty 

(Comp.) 

Veterinary Corps — 

See also Veterinarians. 

Credit for "Government service" (J. A. G.) 

Veterinarians, whether included in (J. A . G . ) 

Virginia — 

Discrimination against Army uniform, etc., prohibited. . 
Voluntary Service — 

Claim for caring for and returning lost public property 
(J. A. G.) 

Expense of returning soldiers absent without leave to 
their commands (J. A. G. ) 

Improvements at national cemeteries (J. A. G. ) 

Eepair of railroad siding on military reservation ( J . A . G . ) 

Eetired Army oflicer as superintendent of Indian school 
(At. Gen.) 

Reward for recovering public property (J. A. G.) 

Transportation for relief of flood victims (J. A. G.) 

Volitnteer Forces — 

Called into service of LTnited States, service in, of en- 
Usted men on active list of Regular Army (J. A. G. ,) 

Preparation for commission in (J. A. G.) 

Volunteers — 

Private military body assuming name of "U. S. Volun- 
teers" (J. A. G.) 

Vouchers — 

Loss of, audit of accounts (Comp.) 

Waiver — 

See also Contracts. 

Exemption from service in National Guard (J. A. G.). . . 
Walter Reed General Hospital — 

Supplies for, how purchased (J. A. G. ) 

War Department — 

See also Secretary of War. 

Adjustment of appropriations for purchase made by 
bureaus or other de[)artments from (Comp.) 

Clerical positions, lilling under act of Aug. 23, 1912 
(Comp. I.. 

Status of employees of Lighthouse Service when trans- 
ferred to (J.A.G.) 

Weight — 

Shrinkage of en route, baais of freight charges (Comp.) 



Year. 



1917 
1912 
1915 



1915 
1916 

1914 



1916 
1916 

1916 

1913 



1917 
1917 

1917 



1914 



No. 



18 

12 

1 



21 
39 

50 



34 

28 

18 



18 



43 



1914 
1914 
1913 


50 
25 

27 


1913 
1915 
1913 


17 
14 
18 


1914 
1913 


39 
1 


1912 


12 


1913 


17 


191G 


28 


1913 
1913 


8 
27 


1914 


46 


1912 


20 


1917 


18 


1915 


36 



INDEX. 



76' 



Bulletins. 



Witnesses — 

Sec also Evidence. 

Courts-martial, member of court for prosecution, plea of 
guilty (J. A. G.) 

Defendant as, credibility (St. Ct.) 

Pri\dlege of (Fed. Ct.) 

Refusal to testify, pardon (Fed. Ct. ) 

Note. — Reversed by U. S. Supreme Court. 

Subpoena of chief of bureau (J. A. G.) 

Wife testifying against husband (J. A. G.) 

Young Men's Christian Association: 

Army branch, wearing of uniform by (J. A. G.) 



Year. 


1 
No. 


1914 


52 


1914 


20 


1915 


14 


1914 


25 


1913 


8 


1915 


39 


1917 


3 



Page. 



440 
374 
486 
390 

160 
51S 

645 



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